A BRIEF LOOK AT CRIMINAL RECORDS Funding provided

A BRIEF LOOK AT CRIMINAL RECORDS Funding provided by the Emma B. Howe Memorial Foundation of The Minneapolis Foundation Emily Baxter The Council on Crime and Justice

POP QUIZ! How many people in Minnesota are in prison, jail, on probation or on parole? A. B. C. D. 1 1 in in 5 18 26 31

How many people were under correctional control in Minnesota in 1982? A. B. C. D. 1 1 in in 8 28 76 98

CORRECTIONAL CONTROL IN THE STATES listed as they appear, top to bottom: probation, jail, parole, prison

Approximately how many Minnesotans come home from prison each year? A. B. C. D. 3, 000 7, 000 12, 000 13, 000

Minnesota has the _____ highest rate of people under correctional control in the nation A. B. C. D. 2 nd 8 th 23 rd 48 th

MSGC REPORT ON FELONIES

How many people in Minnesota have a criminal record? A. B. C. D. 1 1 in in 4 12 24 32

In the mid-2000’s, African American males in Minnesota were arrested for drug-related offenses at a rate ______ times higher than White males A. B. C. D. 1 10 1000

In Minnesota, African American / Black individuals comprise 35. 4% of the incarcerated population and 4. 6% of the general population American Indian individuals comprise 6. 8% of the incarcerated population and 1. 2% of the general population

Juvenile records are private and are expunged once the youth turns 18. True or False?

JUVENILE RECORDS DON’T DISAPPEAR Some juvenile records are destroyed once the youth reaches the age of 28 Some records are public

In 2009, how many children in Minnesota between the ages of 10 and 17 were arrested for serious offenses? A. 110 B. 1, 100 C. 11, 000 D. 110, 000

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23 30. 2 percent were arrested for an offense other than a minor traffic violation Increase in arrests for drug-related offenses, zerotolerance policies in school, and a more aggressive and punitive justice system Study published in 2011 Pediatrics journal

Only convictions appear on a criminal background report. True or False?

WHERE RECORDS ARE KEPT Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MNCIS) Police Department City Attorney Sheriff’s Department County Attorney State Attorney General Department of Corrections Department of Human Services Private data-miners Private theft databases

WHERE RECORDS ARE KEPT BCA MNCIS FBI Private data miners *Incomplete and inaccurate

WHAT RECORDS SAY Levels: § § Felony Gross Misdemeanor Petty Misdemeanor Dispositions § § § § Arrest Dismissal Stay of Adjudication Stay of Imposition Stay of Execution Executed Sentence Acquittal

DISPOSITION Arrest Dismissal = no probable cause CFD = no plea, no conviction SOA = no conviction SOI = misdemeanor SOE = no prison Executed sentence = sit time

DEPARTMENT OF HUMAN SERVICES Minnesota Statute 245 C. 15 § direct care to vulnerable people

SEVEN Misdemeanor: Wrongfully obtaining assistance Food stamp fraud Issuance of dishonored checks Criminal vehicular homicide First through fifth degree assaults Violation of an Order for Protection Theft

TEN Gross misdemeanor: Same as above, plus: Disorderly house Burglary Possession of burglary tools

FIFTEEN Felony: Same as above, plus: Robbery Terroristic threats Chapter 152 Any felony involving drugs or booze

PERMANENT Any level: § Agg. robbery, Crim sex, First degree arson Felony level: § First or second degree assault, Malicious punishment, Neglect

BURDEN Preponderance of the evidence Fifteen to thirty days to respond Few conclusive findings; no traveling set asides

DHS DISQUALIFICATIONS DHS disqualification process separate from court process for expungement § § § If a client gets a DHS disqualification letter, encourage the client to respond immediately and request a set-aside If a client fails to respond to a DHS disqualification letter within the time permitted, the client forfeits his or her right to a hearing about the facts underlying the disqualification A DHS set-aside request can proceed at the same time as a petition for expungement. The client must keep in mind that they are completely separate proceedings

BEYOND SANCTIONS According to a SHRM study conducted last year, approximately what percentage of employers are conducting criminal history reports on job applicants? A. B. C. D. 32% 54% 78% 92%

DO YOU CONDUCT CRIMINAL BACKGROUND CHECKS FOR ANY JOB CANDIDATES? Note: n = 347. Not sure” responses were excluded from this analysis. Slide adapted from January 22, 2010 SHRM presentation titled: Background Checking: Conducting Criminal Background Checks 28

HOW INFLUENTIAL IS/WOULD BE THE DISCOVERY OF EACH OF THE FOLLOWING IN YOUR DECISION TO NOT EXTEND A JOB OFFER? Note: n=312. 29

Arrest Date: 2004/10/01 Historical Local ID#: Controlling Agency: MN 0271110 MINEAPOLIS PD STATE ID NUMBER: MN 0000000 FBI NUMBER: 0000 Count: 1 Offense Date: Case Number: Type: MINNESOTA STATUTE Statute: 609. 595 S 3 Charge: Criminal Damage to Property Other Statute: MN 0000000 MOC/UOC: Disposition: HELD Court File: COMMENT: CONTRLD-SUB-STREET COURT DATE: 2005/01/16 MN 0000 HENNEPIN CO DISTRICT COURT CONFINEMENT AGENCY: PROBATION AGENCY: MN 0000000 HENNEPIN CO PROBATION OFF COURT COUNT: 1 CASE NUMBER: 0000 SENTENCED: 2005/01/16 STATUTE: 609. 52 S 2 MOC/UOC: CHARGE: Criminal Damage to Property DISPOSITION: CONVICTED PLEA: Guilty SJIS NUM: COURT FILE NUMBER: 0000 CONVICTION LEVEL: Misdemeanor SENTENCE -------PRONOUNCED SENTENCE : 60 D NO SAME/SIMILAR PROBATION : 1 Y IMPOS SENT STYD CONDITIONAL CONFINEMENT : RANDOM TESTING FINED : $128 COMMENT: CUSTODY SUPERVISION ---------DATE: 2006/01/21 AGENCY: MN 0000000 HENNEPIN CO DISTRICT COURT CASE NUMBER: 0000 CUSTODY ID NUMBER: 000000 CUSTODY ACTION: DISCHARGED CUSTODY START DATE: CUSTODY EXPIRATION DATE: OTHER: THIS OFFENSE IS DEEMED TO BE A MISDEMEANOR UNDER PROVISIONS OF M. S. A. 609. 13. OTHER: ALL CIVIL RIGHTS ARE RESTORED AND FULL CITIZENSHIP WITH FULL RIGHT TO VOTE AND HOLD OFFICE THE SAME AS IF SAID CONVICTION HAD NOT TAKEN PLACE. THIS DOES NOT APPLY TO ANY OTHER CHARGES OF CONVICTIONS FOR WHICH SUBJECT MAY BE INCARCERATED, ON PROBATION, PAROLE OR SUPERVISED RELEASE. Note that Stays of Imposition are included in the BCA report

Arrest Date: 2006/04/29 Historical Local ID#: Controlling Agency: MN 0271110 MINEAPOLIS PD STATE ID NUMBER: 0000 FBI NUMBER: 000000 Count: 1 Offense Date: Case Number: Type: MINNESOTA STATUTE Statute: 609. 52 Charge: Theft Other Statute: MOC/UOC: Disposition: HELD Court File: COMMENT: COURT DATE: 2006/05/17 CONFINEMENT AGENCY: PROBATION AGENCY: COURT COUNT: 1 CASE NUMBER: SENTENCED: STATUTE: 609. 52 MOC/UOC: CHARGE: Theft DISPOSITION: DISMISSED PLEA: SJIS NUM: COURT FILE NUMBER: 0000 CONVICTION LEVEL

WHAT ARE EMPLOYERS ASKING? Have you ever been convicted of an offense? Have you ever been convicted of a felony? Have you ever been arrested? Are these questions generating useful answers?

OBTAINING RECORDS

choose “All MNCIS Sites – Case Search”

Select search by defendant

Make sure to print out this first page And click and print each of the cases

Print out each of these pages

HOW TO GET BCA RECORDS Bureau of Criminal Apprehension (BCA): § Send a written request § Enclose a check or money order for $8. 00 made payable to the BCA, and a self-addressed stamped envelope. § Response time is approximately two weeks.

REMEDIES + RESPONSES

REMEDIES/RESPONSES DHS Appeal Correction of Records Return of Arrest Records Pardon Extraordinary Statutory Expungement Inherent Authority Expungement Juvenile Record Expungement

MINN. STAT. § 299 C. 11: RETURN OF RECORDS Arrest but no charge or Charge but dismissal prior to a formal finding of probable cause and § No felony or gross misdemeanor conviction within the ten years prior to the arrest at issue.

PARDON EXTRAORDINARY MINN. STAT. § 638. 02 Available for convictions only § No Juvenile Adjudications, Stays of Adjudication, or Petty Misdemeanors Mandatory waiting period § Crime of Violence: 10 year conviction-free period § All other crimes: 5 year conviction-free period § Waiting period can be waived by Board of Pardons

EXPUNGEMENT IN MINNESOTA Court-ordered sealing of government-held records Not destruction of a record Sealed records may be opened for future investigation and prosecution, and for background checks for law enforcement positions.

EXPUNGEMENTS Juvenile and adult expungements § Two main types of adult expungements: Statutory and Inherent Authority § Two types of juvenile expungements: adjudications of delinquency and petty misdemeanors

STATUTORY (MINN. STAT. § 609 A) 1. Certain controlled substance offenses. 2. Juveniles prosecuted as adults. 3. Certain criminal proceedings not resulting in conviction. § All charges in the case resolved entirely in the petitioner’s favor

STATUTORY – MINN. STAT. § 609 A Expungement prohibited. § Where predatory offense registration is required: § Murder, kidnapping, crim sex, etc. It is unlikely that many traffic, family matters, and open files will be expunged. (Motion to seal records)

STATUTORY - RESOLVED IN FAVOR Dismissals and acquittals Dismissal of grand jury indictment. State v. K. M. M. , 721 N. W. 2 d 330 (Minn. Ct. App. 2006). Dismissed, separate incidents or charges where petitioner plead guilty to other separate incidents or charges. State v. JRA , 714 N. W. 2 d 722 (Minn. Ct. App. 2006). Continuances for dismissal. State v. C. P. H. , 707 N. W. 2 d 699 (Minn. Ct. App. 2006) where no guilty plea was entered. Arrests without charges, where not otherwise eligible for 299 C. 11. Never pleading guilty, admitting guilt, or being found guilty.

NOT RESOLVED IN FAVOR Being found guilty or pleading guilty, even if not accepted by the court. § 609 A. 02, Subd. 3; State v. A. C. H. , 710 N. W. 2 d 587 (Minn. Ct. App. 2006). Admissions of guilt as a pre-requisite to diversionary programs & deferred guilty pleas. State v. J. Y. M. , 711 N. W. 2 d 139 (Minn. Ct. App. 2006). Being found not guilty by reason of insanity. 609 A. 02, Subd. 3 Stay of adjudication. State v. Davisson , 624 N. W. 2 d 292 (Minn. Ct. App. 2001). Alford plea, where the defendant admitted there was sufficient evidence to convict, but maintained innocence. State v. Henkensiefken , 2005 WL 1431913 (Minn. Ct. App. 2005).

RIF VS. NON-RIF: WHY IS THIS DISTINCTION IMPORTANT? § Separation of Powers § The statute allows the judge to order ALL government records § In many cases, inherent authority seals only court records

STATUTORY - RESOLVED IN FAVOR Presumptively granted unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.

STATUTORY - CERTAIN DRUGS AND JCA Extraordinary remedy to be granted only upon clear and convincing evidence § that it would yield a benefit to petitioner § commensurate with the disadvantage to the public and public safety of sealing the record and burdening the court and public authorities on issuing, enforcing, and monitoring an expungement order. Minn. Stat. 609 A. 03, subd. 5

INHERENT AUTHORITY EXPUNGEMENT Where constitutional rights have been seriously infringed, or When expungement will yield a benefit to petitioner commensurate with the disadvantage to the public from the elimination of the record and the burden on the court on issuing, enforcing, and monitoring an expungement order.

INHERENT AUTHORITY EXPUNGEMENT Indicia used in Inherent Authority balancing test: 1. difficulties in securing employment or housing as a result of the records sought to be expunged; 2. the seriousness and nature of the offense; 3. the potential risk to the public’s right to access the records; 4. any additional offenses or rehabilitative efforts since the offense; and 5. other objective evidence of hardship under the circumstances.

INHERENT AUTHORITY EXPUNGEMENT Current case law is in flux. Prior to MDT, most cases limited a judge’s ability to order records sealed at the Bureau of Criminal Apprehension and other executive branch agencies in most cases In view of the separation of powers, courts proceed cautiously in ordering expungement of records held by the executive branch. Relief is appropriate when essential to the existence, dignity, and function of a court. These essential functions include the ability to vindicate a petitioner’s legal rights and to protect the judiciary’s strength and independence.

RECENT APPELLATE DECISION - MDT April 9, 2012: The COA found that a district court did not abuse its discretion by ordering the expungement of criminal records that are generated by the judicial branch and maintained by the executive branch. Here, petitioner sought to expunge the record of an aggravated forgery conviction (Stay of Imposition, successfully completed in 2008). Denied in 2008; granted in 2011. Court did not seal “non-public” BCA records or DHS records

JUVENILE EXPUNGEMENTS Minn. Stat. § 260 B. 198 subd. 6 states that the court “may expunge an adjudication of delinquency at any time that it deems advisable. ” Procedures for juvenile expungement are not defined in the statutes.

NEW COURT OF APPEALS CASE - JJP Minnesota Statute 260 B. 198 allows the court the authority to seal executive branch records No separation of powers conflict. Look to Minn. R. Juv. Delinq. 15. 05 § Public safety and best interests of child; allow for personal and social growth

SAMPLE OF DATABASES Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

STATUTORY - RESOLVED IN FAVOR Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

INHERENT AUTHORITY Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

INHERENT AUTHORITY - MDT Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

JUVENILE EXPUNGEMENT - JJP Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

PARDON Court records Bureau of Criminal Apprehension County Attorney Police Department of Corrections Department of Human Services Private Data Miners

STILL GOOD REASONS TO SEEK EXPUNGEMENT Even where the order is limited: § Seals some records § Order can act as a certificate of rehabilitation § Safe Hiring – limits employer’s liability § Some misdemeanors and petty misdemeanors are not reported to the BCA § Can ask BCA to include note in record that court records were expunged

RELEVANT LAWS

TITLE VII AND FCRA Fair Credit Reporting Act Civil Rights Act

FCRA – THE PROCESS Must obtain permission Must provide pre-adverse action notice – with a copy of the report! Must provide consumer reporting agency’s contact information

CIVIL RIGHTS ACT – THE SUBSTANCE Cannot use arrest records alone Cannot use blanket bans Must engage the record § Includes consideration of nature and severity, time since offense, relationship to job, and rehabilitation

SPEAKING TO EMPLOYERS

INDIVIDUALIZED ASSESSMENT Advocate for your particular client Understand the offense and be able to address concerns. Focus on rehabilitation

BENEFITS Skills and Qualifications § Position-specific readiness Loyalty § Johns Hopkins Study Work Ethic Diversity Work Opportunity Tax Credit & Bonding Community Need

SAVE MONEY / SAVE TIME Increase your business income Save on costs of recruiting, hiring, and training

RESOURCES Law. Help. MN. org Volunteer Lawyers Network: (612) 752 -6677 (client intake line) Legal Aid Services – available throughout Minnesota: lawhelpmn. org & mnlegalservices. org Council on Crime and Justice: (612) 353 -3024; crimeandjustice. org

QUESTIONS? Emily Baxter Council on Crime and Justice baxtere@crimeandjustice. org NOTE: The content of this document is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking legal advice should contact an attorney.