Expungement & Beyond Helping Clients Understand & Address T heir Juvenile and Criminal Record

Expungement & Beyond

Helping Clients Understand & Address Their Juvenile and Criminal Record.

The Council on Crime and Justice

Joshua Esmay

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 MINNESOTA

Source: pewstates.org, The Long Reach of American Corrections Minnesota

SIZE OF MINN. STAT. 609

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

A. 2nd

B. 8th

C. 23rd

D. 48th

THE COST

$460 million per year on correctional control

How many people in Minnesota have a criminal record?

A. 1 in 4B. 1 in 12C. 1 in 24D. 1 in 32

Source: The Sentencing Project’s Trends in US Corrections

DISPARITIES START EARLY

Source: The Minneapolis Foundation’s 2012 OneMinneapolis Report

Juvenile records are private and are expunged once the youth turns 18.

True or False?

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

S t u d y p u b l i s h e d i n 2 0 1 1 Pe d i a t r i c s j o u r n a l

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23

ONE HALF OF BLACK YOUTH ARRESTED BY AGE 23

Many males – especially black males – are navigating the transition from youth to

adulthood with the baggage and difficulties from contact with the criminal justice system.

Study published in 2014 Crime and Delinquency journal

According to the DOJ’s BJS, over 92 million individuals have a criminal history on file in state criminal history repositories.

With about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population – estimated at about one in three or four adults – has a criminal record on file

ONE IN THREE

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16,000,000

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20,000,000

Growth of population with felony convictions, 1948-2010

Ex-Felons

Total Felony Probation

Total Parole

Total Jail

Total Prison

Thanks to Robert Stewart, U of M

Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

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Ex-Felons


Total Parole

Total Jail

Total Prison


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Ex-Felons


Total Parole

Total Jail

Total Prison


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Ex-Felons


Total Parole

Total Jail

Total Prison


THE HIDDEN COST

The $460m doesn’t include what communities spend to house, train, educate, counsel, treat, employ and otherwise transition individuals leaving prison or jail.

EXPUNGEMENT

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

WHAT ARE CRIMINAL RECORDS?

MNCIS BCAPetty misdemeanor, misdemeanor, gross misdemeanor, and felony cases

All felony and gross misdemeanor cases; some misdemeanor cases

Procedural history of the case Arrest offense levelCharged offense level Charged offense levelDisposition offense level Disposition offense levelSentencing information Sentencing informationProbation violations Probation violationsAliases Aliases and physical descriptionPermanent Public for 15 years, then privateConviction records online, all records available at courthouse

Public records online, Private obtained with consent

WHAT RECORDS SAY

General RulePer Minn. Stat. §260B.171 juvenile records are private.

They cannot be accessed by the general public.

They can be accessed by the subject.

ACCESS TO JUVENILE RECORDS

1) Extended Jurisdiction Juvenile- if unsuccessful on probation and adult sentence is executed,

2) Certification to adult criminal court,

3) 16 or 17 years juvenile charged with felony-level offense receive a public court hearing and subsequent public record Minn. Stat. §260B.163.

EXCEPTIONS TO GENERAL RULE

Typically obtained through release form contained in employment or rental application: Minn. Stat. 13.05 § subd.4(d)

Minn. Stat. §260B.171subd.4 prohibits the court from releasing non-public juvenile records.

Minn. Stat. §299C.095 prohibits the BCA from release any juvenile records, even with informed consent.

Local law enforcement not covered- 2009 half of police departments surveyed released private juvenile records with informed consent.

INFORMED CONSENT

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.

Basics of Expungement Law

Minn. Stat. §299c.11 “administrative” seals law enforcement & BCA

Minn. Stat. §609A “statutory” seals all agency records

Inherent Authority State v. MDT seals only court records absent “appropriate circumstances”

Juvenile Delinquency Minn. Stat. §260B.198, sub. 6 & In re JJP…expunges…it’s complicated…

Four Types of Criminal Expungement in MN (in a nutshell)

Arrest but no chargeor

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

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

Expungement prohibited. Where predatory offense registration is required:

Murder, kidnapping, crim sex, etc.

Statutory (Minn. Stat. §609A)

Dismissals and acquittals Dismissal 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

What is an Inherent Authority Expungememt?

A way to expunge anything that does not fit under the expungement statutes.

A creature of case law.

The issue: in what circumstances may a district court judge seal criminal records maintained outside of the judicial branch? Judicial records are usually not a legal issue.

Scope of relief has expanded and contracted every few years .

3 felony counts of aggravated forgery for altering a prescription for Robitussin, from 200 ml to 400 ml;

Admitted to police that she altered the Rx because she wouldn’t be able to afford a second co-pay;

Pled guilty and received a stay of imposition, discharged from probation early;

Obtained GED and College Degree but employment limited to grocery store cashier because of background checks;

State v. MDT; The Petitioner’s Story

State v. MDT: Court of Appeals

State v. M.D.T., 815 N.W.2d 628 (Minn. App. 2012) Published Court of Appeals case allowing

expungement of criminal records maintained by the executive branch.

Broadest reading of S.L.H. exceptions so far. Incorporates public policy into decision. Supreme Court granted review June 27, 2012.

State v. MDT: Supreme Court

831 N.W.2d 276 (Minn. 2013).

District court abused its discretion by sealing executive-branch records. A court’s authority to expunge its own records does

not empower it to expunge executive branch records, even if generated in the judicial branch.

State v. MDT: Supreme Court

Separation of Powers and respect for legislative mandate for executive branches Contravenes §609A’s limited, enumerated list of offense

types for expungement.

Contravenes the Data Practices Act—presumption that government data are public. Minn. Stat. §13.01, §13.02

“Because 15 years have not elapsed since the discharge of MDT’s sentence, the Legislature has determined…that MDT’s criminal records are public data.”

Can I ever Get My Client’s Executive-Branch Records Sealed Under MDT?

What if your client was not ultimately convicted? Vacate & Dismiss Stay of Adjudication Reversed on Appeal (C.A.) Exonerated by DNA, etc. Otherwise ultimately dismissed after guilty plea/verdict

What if your client’s case is so old that the legislative mandates for access to the data do not apply? Data Practices, DHS/MDH, Sentencing Guidelines

What about everyone else?

Benefits of a judicial records expungement: Still may be useful for minor offenses that have not

been reported to the BCA The order is better than nothing, and if it is well

drafted, could help your client with job interviews, housing applications, etc. Write your own proposed order. Make it persuasive.

Update the BCA records. Send a demand letter to the BCA with the expungement order. Minn. Stat. §13.01, §13.04

Safe Hiring – limits employer’s liability. Minn. Stat. §181.981

Alternatives to Expungement

Agency ReliefWork with the remedies available through the

agency that may have issued an adverse decision your client. Department of Human Services/Department of Health

Disqualification Appeals (Minn. Stat. §245C; DHS Fair Hearings, Minn. Stat. §256.045; OAH Hearings (Minn. R. 1400.510-1400.8400)

Professional Board Licensure Appeals (varies based on board)

Public Housing/ Section 8 Denial Appeals

The BCA Fix

Alternatives to Expungement

Pardon ExtraordinaryMinn. Stat. §638http://www.doc.state.mn.us/boardofpardons/default.ht

m (Board of Pardons website)

MN Board of Pardons may grant a “pardon extraordinary” 5-10 years after discharge of sentence.

Benefit: sets aside and nullifies the conviction; eliminates DHS/MDH disqualifications based on convictions; seals public BCA record and adds “pardoned” note to file.

Drawback: does not seal the record.

http://www.doc.state.mn.us/boardofpardons/default.htm

http://www.doc.state.mn.us/boardofpardons/default.htm

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.

Does JJP bring clarity?

Juvenile Expungements

1. What is the test or burden on proof for expungements under §260B.198, subd. 6?

2. Does §260B.198, subd. 6 authorize expungement of executive branch records when the court deems such act “advisable.”

3. Does an expungement of juvenile records from DHS records usurp DHS’s mandate to conduct background studies and in so doing violate the separation of powers doctrine?

Issues Addressed by Supreme CourtIn Re. JJP 831 N.W.2d 260 (Minn. 2013)

Expungement of Juvenile Records Under §260B.198, subd. 6 does not violate Separation of Powers.

Clarifies legal standard:

JJP (The Good)

Meaning of the Phrase – “Adjudication of Delinquency”

1. Court found that the term “adjudication of delinquency” is limited to the order adjudicating the juvenile delinquent.

2. Not a process but a single event.3. Additional documents in the executive branch

file such as arrest data, investigation records, and the petition of delinquency do not logically fall within the term “adjudication of delinquency.”

Thud!

JJP (The Bad)

How does sealing the order of adjudication affect the reaming BCA and DHS records?

JJP (The Confusing)

Pre-session bipartisan bicameral workgroup

formed by Rep. Debra Hilstrom and Sen. Bobby Joe Champion.

Senate File 2214 – Champion, Petersen, B. House File 2576 - Melin ; Hilstrom ; Hertaus ;

Lesch ; Dehn, R. ; FitzSimmons . Passed the House 84-48 and the Senate 58-4. Signed by Governor Dayton May 14. 2014 Session Laws Chapter 246.

2014 EXPUNGEMENT REFORM

Expands 609A.02 Subd. (3) to include:1. Stays of Adjudication & Diversion; 1 year after

completion of sentence if crime free2. Convictions for petty misdemeanors &

misdemeanors; 2 years after discharge of sentence if crime free

3. Gross misdemeanors; 4 years after discharge of sentence if crime free

4. Select non-violent felonies; 5 years after discharge of sentence if crime free

WHAT DOES IT DO?

Clarifies that 260B.198 Subd. (6) includes all records relating to the arrest and delinquency proceedings.

WHAT DOES IT DO?JUVENILE RECORDS

1. Exempts from the list of expungeable Misdemeanor and Gross Misdemeanors any crime involving domestic violence or sexual assault until July 2015.

2. Allows for expungement without a petition with prosecutors consent, notice to victim, & judicial review of burden.

3. Effects Private Databases: requires deletion of expunged records for business screening services- if they know.

4. Allows for exchange of expunged records between law enforcement agencies without court order. Only for orders after enactment.

WHAT ELSE DOES IT DO?

5. Allows housing eviction records to be sealed when there is a finding in favor of the tenant.

6. Allows DHS to receive expunged conviction with court order and requires Court/BCA to inform DHS of the existence of expunged record.

7. Provides an Effective Date of January 1st, 2015

8. Clarifies the standard for both juvenile and adult expungements…

WHAT ELSE DOES IT DO? CONTINUED

Benefit ≥ Harm

Standard for Judicial Records Expungement

Burdens

Low threat level

“expungement of a criminal record is an extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of:

(1) sealing the record; and(2) burdening the court and public authorities to

issue, enforce, and monitor an expungement order.” 609A.03 Subd. 5

BURDEN OF PROOF, STANDARD

1. the nature and severity of the underlying crime , the record of which would be sealed;

2. the risk, if any, the petitioner poses to individuals or society;

3. the length of time since the crime occurred;4. the steps taken by the petitioner toward

rehabilitation following the crime;5. aggravating or mitigating factors relating to the

underlying crime, including the petitioner's level of participation and context and circumstances of the underlying crime;

6. the reasons for the expungement , including the petitioner's attempts to obtain employment, housing, or other necessities;

BURDEN FACTORS

7. the petitioner's criminal record;8. the petitioner's record of employment and

community involvement;9. the recommendations of interested law

enforcement, prosecutorial, and corrections officials;10. the recommendations of victims or whether victims

of the underlying crime were minors; 11. the amount, if any, of restitution outstanding, past

efforts made by the petitioner toward payment, and the measures in place to help ensure completion of restitution payment after expungement of the record if granted; and

12. other factors deemed relevant by the court.

BURDEN FACTORS (CONTINUED)

Minn. Stat. § 609A.02 Subd. 4 Court may not seal records of an offense for which the

petitioner is required to register as a predatory offenderOwing to the court

Probation Fines Warrants

Factors Violent v. non-violent Felony, gross misdemeanor, misdemeanor, petty Time since the offense; clean history

Traffic Offenses Generally not subject to expungement

REASONS FOR DENIAL

I am seeking expungement because…

Tips Be personal and specific Use examples

Proof Denial letters Job application log

PROVING THE CASE (BURDEN)

Since conviction of the offense, I have taken the following steps towards personal rehabilitation…

Tips Admit responsibility and tie responsibility to rehab Be personal and specific Use examples --- tie to errors

Proof Character letters Certificates of completion, etc.

PROVING THE CASE (REHAB)

Draft petitionBring to court for case number and filing

$325 filing fee – or – fee waiver Except ‘Resolved in Favor’ cases

Have someone over 18 serve on state agencies whose records may be affected by the order

After 60 days, court hearing60 day stay on order

EXPUNGEMENT PROCESS

Usually about 15 minutes, often on a ‘cattle call’ calendar

Petitioner must be prepared to present case in an orderly manner

Judge may ask questionsState agencies may send an attorney to opposeObserve!!

EXPUNGEMENT HEARINGS

LawHelpMN.org

Volunteer Lawyers Network: (612) 752-6677 (client intake line)

Legal Aid Services – available throughout Minnesota: lawhelpmn.org & mnlegalservices.org

RESOURCES

COLLATERAL CONSEQUENCES

Minnesota Statute 245C.15direct care to vulnerable people

DEPARTMENT OF HUMAN SERVICES

THE MINNESOTA SENTENCING GUIDELINES COMMISSION

MSGC receives “troubling stories” about barriers youth face when carrying a criminal record

18-year-old woman with a delinquency adjudication for an assault at age 16 completed a nursing assistant course at an

alternative high school unable to get DHS approval - a result that the

school did not anticipate, because administrators believed the delinquency would "disappear" when she reached majority.

DHS has statutory access to both public and private records held at the BCA regardless of whether there was an adjudication of delinquency. Minn Stat. §299C.095 subd. 1 (b).

Take note of BCA retention schedules in advising clients. You may be able to “wait out” DHS.

But what about private court records?

PRIVATE RECORDS

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; few 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

The individual must submit the request for reconsideration to the commissioner in writing.

15 or 30 days to respond, depending on whether DHS determines that the individual should be removed from the position during the reconsideration period

2 Types of relief Reconsideration of disqualifying characteristic

Correcting a mistake, or challenging the POE determination

Request a “set-aside”

DHS DISQUALIFICATIONS

SET-ASIDE CRITERIA 245C.22 SUBD.4

(b) In determining whether the individual has met the burden of proof by demonstrating the individual does not pose a risk of harm, the commissioner shall consider:

(1) the nature, severity, and consequences of the event or events that led to the disqualification;(2) whether there is more than one disqualifying event;(3) the age and vulnerability of the victim at the time of the event;(4) the harm suffered by the victim;(5) vulnerability of persons served by the program;(6) the similarity between the victim and persons served by the program;(7) the time elapsed without a repeat of the same or similar event;(8) documentation of successful completion by the individual studied of training or rehabil itation pertinent to the event; and(9) any other information relevant to reconsideration.

245C.08: Notwithstanding expungement by a court, the commissioner may consider information…unless the commissioner received notice of the petition for expungement and the court order for expungement is directed specifically to the commissioner.

If not included in the expungement order DHS can access the expunged record and will receive notice of its existence when they request BCA records. See. 609A.03 subd. 7a

EXPUNGEMENT AND DHS

COLLATERAL SANCTIONS: GETTING A LICENSE

department of human services department of health board of behavioral health & therapy board of barber & cosmetologist examiners department of corrections county community corrections board of peace officer standards & training board of accountancy department of education board of teaching board of social work board of dentistry department of labor and industry federal aviation commission department of homeland security pari-mutuel betting

According to a SHRM study conducted in 2012, approximately 87% of employers are conducting background checks.

BEYOND SANCTIONS

DO YOU CONDUCT CRIMINAL BACKGROUND CHECKS FOR ANY

JOB CANDIDATES?

77

Not Not sure” responses were excluded from this analysis. Slide adapted from July 19, 2012 SHRM presentation titled: SHRM Survey Findings: Background Checking – The Use of Criminal Background Checks in Hiring Decisions.

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

Select job candidates

All job candidates

7%

19%

73%

14%

18%

69%

2012 (n = 406)2010 (n = 347)

Wisconsin and Minnesota

Entry-level positions

Two teams of testers

CALL BACKS

CALL BACKS

OTHER LAWS

Employers in MN may not inquire into or consider the criminal record of a job applicant until the applicant has been selected for an interview of conditional offer of employment.

Minn. Stat. § 364.021

Image from Goodwill / Easterseals

“BAN THE BOX”

Enforced by MN Dept. Human Rights- engaged in comprehensive education program to bring about compliance

Penalties 2014 : Written warning from MDHR before fines, then up to

$500 per month if not corrected within 30 day 2015:

< 10 employees: up to $100 per violation, max of $100 per month

11 to 20 employees: up to 500 per violation, max of $500 per month

> 20 employees: up to $500 per violation, max of $2000 per month

BAN THE BOX: DETAILS

Employers may still inform applicants that they may be disqualified because they have a previously committed a crime

Multi-state employers may still use forms that include a criminal records question, but it must be clear that applicants for jobs within Minnesota need not answer it

Does not apply to employers who have a statutory duty to conduct criminal history checks.

BAN THE BOX: DETAILS

The Background Check Process:

Obtain permission

Notify before reject applicant and provide a copy of the background report

Provide contact information for reporting agency

FAIR CREDIT REPORTING ACT (FCRA)

The Substance of Background Check Policies

Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin.

Enforced by the EEOC. Guidelines recommend policies to help employers establish fair and defensible screening practices consistent with Title VII of the Civil Rights Act.

CIVIL RIGHTS ACT

Josh Esmay

Council on Crime and Justice

[email protected] Records Information Line: 612-

353-3024

THANK YOU!

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.

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Expungement & Beyond Helping Clients Understand & Address T heir Juvenile and Criminal Record