Emily Baxter a brief look at criminal records The Council on Crime and Justice Funding provided by the Emma B. Howe Memorial Foundation of The Minneapolis

Emily Baxter

a brief look at criminal records

The Council on Crime and Justice

Funding provided by the Emma B. Howe Memorial Foundation of The Minneapolis Foundation

How many people in Minnesota are in prison, jail, on probation or on parole?

A. 1 in 5B. 1 in 18C. 1 in 26D. 1 in 31

POP QUIZ!

How many people were under correctional control in Minnesota in 1982?

A. 1 in 8B. 1 in 28C. 1 in 76D. 1 in 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. 3,000B. 7,000C. 12,000D. 13,000

Minnesota has the _____ highest rate of people under correctional control in the nation

A. 2nd

B. 8th

C. 23rd

D. 48th

MSGC REPORT ON FELONIES

How many people in Minnesota have a criminal record?

A. 1 in 4B. 1 in 12C. 1 in 24D. 1 in 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. 1B. 10C. 100D. 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?

Some juvenile records are destroyed once the youth reaches the age of 28

Some records are public

JUVENILE RECORDS DON’T DISAPPEAR

In 2009, how many children in Minnesota between the ages of 10 and 17 were arrested for serious offenses?

A. 110B. 1,100C. 11,000D. 110,000

30.2 percent were arrested for an offense other than a minor traffic violation

Increase in arrests for drug-related offenses, zero-tolerance policies in school, and a more aggressive and punitive justice system

Study published in 2011 Pediatrics journal

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23

Only convictions appear on a criminal background report.

True or False?

Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MNCIS)Police DepartmentCity AttorneySheriff’s DepartmentCounty AttorneyState Attorney General Department of CorrectionsDepartment of Human Services

Private data-minersPrivate theft databases

WHERE RECORDS ARE KEPT

BCAMNCISFBI

Private data miners

*Incomplete and inaccurate

WHERE RECORDS ARE KEPT

Levels: Felony Gross Misdemeanor Misdemeanor Petty Misdemeanor

Dispositions Arrest Dismissal Stay of Adjudication Stay of Imposition Stay of Execution Executed Sentence Acquittal

WHAT RECORDS SAY

DISPOSITION

ArrestDismissal = no probable causeCFD = no plea, no convictionSOA = no convictionSOI = misdemeanorSOE = no prisonExecuted sentence = sit time

Minnesota Statute 245C.15direct care to vulnerable people

DEPARTMENT OF HUMAN SERVICES

Misdemeanor:

Wrongfully obtaining assistanceFood stamp fraudIssuance of dishonored checksCriminal vehicular homicideFirst through fifth degree assaultsViolation of an Order for ProtectionTheft

SEVEN

Gross misdemeanor:

Same as above, plus:Disorderly houseBurglaryPossession of burglary tools

TEN

Felony:

Same as above, plus:RobberyTerroristic threatsChapter 152Any felony involving drugs or booze

FIFTEEN

Any level: Agg. robbery, Crim sex, First degree arson

Felony level:First or second degree assault, Malicious punishment, Neglect

PERMANENT

Preponderance of the evidenceFifteen to thirty days to respond

Few conclusive findings; no traveling set asides

BURDEN

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

DHS DISQUALIFICATIONS

According to a SHRM study conducted last year, approximately what percentage of employers are conducting criminal history reports on job applicants?

A. 32%B. 54%C. 78%D. 92%

BEYOND SANCTIONS

DO YOU CONDUCT CRIMINAL BACKGROUND CHECKS FOR ANY JOB

CANDIDATES?

73%

19%

7%

All job candidates

Selected job candidates

No, my organization does not conduct this type of background check for any of its job candidates

28

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

HOW INFLUENTIAL IS/WOULD BE THE DISCOVERY OF EACH OF THE FOLLOWING IN

YOUR DECISION TO NOT EXTEND A JOB OFFER?

29Note: n=312.

Arrest Date: 2004/10/01Historical Local ID#:Controlling Agency: MN0271110 MINEAPOLIS PDSTATE ID NUMBER: MN0000000 FBI NUMBER: 00000000 Count: 1 Offense Date: Case Number:Type: MINNESOTA STATUTEStatute: 609.595S3Charge: Criminal Damage to PropertyOther Statute: MN0000000 MOC/UOC:Disposition: HELD Court File:

COMMENT: CONTRLD-SUB-STREET COURT DATE: 2005/01/16 MN00000000 HENNEPIN CO DISTRICT COURTCONFINEMENT AGENCY: PROBATION AGENCY: MN0000000 HENNEPIN CO PROBATION OFF COURT COUNT: 1 CASE NUMBER: 00000000 SENTENCED: 2005/01/16STATUTE: 609.52S2 MOC/UOC:CHARGE: Criminal Damage to Property DISPOSITION: CONVICTED PLEA: Guilty SJIS NUM:COURT FILE NUMBER: 00000000 CONVICTION LEVEL: Misdemeanor SENTENCE---------------PRONOUNCED SENTENCE : 60D NO SAME/SIMILARPROBATION : 1Y IMPOS SENT STYDCONDITIONAL CONFINEMENT : RANDOM TESTINGFINED : $128

COMMENT: CUSTODY SUPERVISION-------------------DATE: 2006/01/21 AGENCY: MN0000000 HENNEPIN CO DISTRICT COURTCASE NUMBER: 00000000 CUSTODY ID NUMBER: 000000CUSTODY ACTION: DISCHARGEDCUSTODY 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: 2006/04/29Historical Local ID#:Controlling Agency: MN0271110 MINEAPOLIS PDSTATE ID NUMBER: 00000000 FBI NUMBER: 000000Count: 1 Offense Date: Case Number:Type: MINNESOTA STATUTEStatute: 609.52Charge: TheftOther Statute: MOC/UOC:Disposition: HELD Court File:

COMMENT:COURT DATE: 2006/05/17CONFINEMENT AGENCY: PROBATION AGENCY:COURT COUNT: 1 CASE NUMBER: SENTENCED:STATUTE: 609.52MOC/UOC:CHARGE: Theft DISPOSITION: DISMISSED PLEA: SJIS NUM:COURT FILE NUMBER: 00000000 CONVICTION LEVEL

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?

WHAT ARE EMPLOYERS ASKING?

REGISTER OF ACTIONS Case No. 31-CR-04-151

State of Minnesota vs WYATT MATTERS § Case Type:

Crim/Traf Non-Man § Date Filed: 03/28/2004 § Itasca § Location: Criminal/Traffic/Petty §

PARTY INFORMATION

Lead Attorneys Defendant MATTERS, WYATT Male 123 Smith Ave 03/15/1965 MPLS, MN 55415 Jurisdiction State of Minnesota NONE

CHARGE INFORMATION

Charges: MATTERS, WYATT Statute Level Date

1. Drugs - 5th Degree - Possess Schedule 1,2,3,4 - Not Small Amount Marijuana 152.025.2(1) Felony 3/28/2004

EVENTS & ORDERS OF THE COURT

Events & Orders of the Court DISPOSITIONS 04/28/2004

Plea (Judicial Officer: Hawkinson, John) 1. Drugs - 5th Degree - Possess Schedule 1,2,3,4 - Not Small Amount Marijuana Guilty

06/09/2004

Disposition (Judicial Officer: Hawkinson, John) 1. Drugs - 5th Degree - Possess Schedule 1,2,3,4 - Not Small Amount Marijuana Stay of adjudication

06/09/2004

Continued (Judicial Officer: Hawkinson, John) 1. Drugs - 5th Degree - Possess Schedule 1,2,3,4 - Not Small Amount Marijuana 03/25/2008 (FEL) 152.025.2(1) (15202521)

Local Confinement:

Agency: Itasca County Jail Term: 30 Days Time To Serve: 30 Days Credit For Time Served: 30 Days Comment: actual credit is 94 days Status: Active 06/09/2004

Probation - Adult:

Type: Supervised probation Agency: MN Department of Corrections.- Field Services

OBTAINING RECORDS

choose “All MNCIS Sites – Case Search”

Select search by defendant

Make sure to print out this first pageAnd 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

DHS Appeal

Correction of Records

Return of Arrest Records

Pardon Extraordinary

Statutory Expungement

Inherent Authority Expungement

Juvenile Record Expungement

Remedies/Responses

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.

Minn. Stat. § 299C.11:Return of Records

Available for convictions onlyNo Juvenile Adjudications, Stays of Adjudication, or Petty Misdemeanors

Mandatory waiting periodCrime of Violence: 10 year conviction-free period

All other crimes: 5 year conviction-free periodWaiting period can be waived by Board of Pardons

Pardon Extraordinary Minn. Stat. §638.02

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.

Expungement in Minnesota

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

Expungements

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. §609A)

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 – Minn. Stat. §609A

Dismissals and acquittalsDismissal of grand jury indictment. State v. K.M.M., 721 N.W.2d

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.2d 722 (Minn. Ct. App. 2006).

Continuances for dismissal. State v. C.P.H. , 707 N.W.2d 699 (Minn. Ct. App. 2006) where no guilty plea was entered.

Arrests without charges, where not otherwise eligible for 299C.11.

Never pleading guilty, admitting guilt, or being found guilty.

Statutory - Resolved In Favor

Being found guilty or pleading guilty, even if not accepted by the court. §609A.02, Subd. 3; State v. A.C.H., 710 N.W.2d 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.2d 139 (Minn. Ct. App. 2006).

Being found not guilty by reason of insanity. 609A.02, Subd. 3 Stay of adjudication. State v. Davisson, 624 N.W.2d 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).

Not Resolved In Favor

Separation of Powers

The statute allows the judge to order ALL government records

In many cases, inherent authority seals only court records

RIF vs. non-RIF:Why is this distinction important?

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 - Resolved in Favor

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. 609A.03, subd. 5

Statutory - Certain Drugs and JCA

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.


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.


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.


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

Recent Appellate Decision - MDT

Minn. Stat. § 260B.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.

Juvenile Expungements

Minnesota Statute 260B.198 allows the court the authority to seal executive branch records

No separation of powers conflict.

Look to Minn. R. Juv. Delinq. 15.05Public safety and best interests of child; allow for personal and social growth

New Court of Appeals Case - JJP

Court recordsBureau of Criminal ApprehensionCounty AttorneyPoliceDepartment of CorrectionsDepartment of Human Services

Private Data Miners

Sample of Databases


Private Data Miners

Statutory - Resolved in Favor


Private Data Miners

Inherent Authority


Private Data Miners

Inherent Authority - MDT


Private Data Miners

Juvenile expungement - JJP


Private Data Miners

Pardon

Even where the order is limited:

Seals some recordsOrder can act as a certificate of rehabilitationSafe Hiring – limits employer’s liabilitySome misdemeanors and petty misdemeanors are not reported to the BCA

Can ask BCA to include note in record that court records were expunged

Still good reasons to seek expungement

RELEVANT LAWS

Fair Credit Reporting Act

Civil Rights Act

TITLE VII AND FCRA

Must obtain permissionMust provide pre-adverse action notice –

with a copy of the report!Must provide consumer reporting agency’s

contact information

FCRA – THE PROCESS

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

CIVIL RIGHTS ACT – THE SUBSTANCE

SPEAKING TO EMPLOYERS

Advocate for your particular clientUnderstand the offense and be able to

address concerns.Focus on rehabilitation

INDIVIDUALIZED ASSESSMENT

Skills and Qualifications Position-specific readiness

Loyalty Johns Hopkins Study

Work Ethic Diversity Work Opportunity Tax Credit & Bonding Community Need

BENEFITS

Increase your business income

Save on costs of recruiting, hiring, and training

SAVE MONEY / SAVE TIME

LawHelpMN.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

RESOURCES

Emily BaxterCouncil on Crime and Justice

[email protected]

QUESTIONS?

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.

Documents

Emily Baxter a brief look at criminal records The Council on Crime and Justice Funding provided by the Emma B. Howe Memorial Foundation of The Minneapolis