Transcript CRIMINAL EXPUNGEMENTS 101

Criminal Expungement:
From A to Z and Back Again
Pro Bono Week CLE
October 25, 2011
The Need for Expungement

Criminal records are created by the slightest
brush with police:
 Arrest
 Citation without arrest
 Formal charge
 Diversion program
 Conviction
 Dismissal
The Need for Expungement

The records remain public* regardless of the
outcome:
 Conviction
 Dismissal
 Acquittal
 Never charged
 Successful completion of probation,
diversionary program
 Pardon
 Juveniles charged at 16 or 17 with a felony –
regardless of disposition
* Some records are easier to find than others, but they all remain public to
some extent.
The Need for Expungement

The number of people in Minnesota under correctional control has
skyrocketed:
 Approximate 280% increase in adults under correctional control
from the early 1980s to today
 Minnesota has the 8th highest rate of adults under correctional
control in the nation
 Felony convictions in Minnesota have doubled in the last two
decades
 Nationally, it is estimated that 1 in 5 people have criminal records.
In Minnesota, it is estimated that 1 in 4 people have criminal
records
 6,000 Minnesotans come home from prison every year
 1 in 5 African American men in Minnesota cannot vote because
they are incarcerated, on probation, or on parole.
Why the increase?

 More conduct is criminalized
 War on Drugs
 Quality of life crimes
 Schools call the police more often than in
the past
 Increase in criminal statutes
Correctional Control in the U.S.
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Minnesota Sentencing Guidelines
Commission Report on Felonies
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The effect of a criminal record is
greater than ever
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 Increased access to records (instant and
often free)
 Increased use of records by decisionmakers
 DHS now conducts 500,000 background
studies per year
 Increased collateral consequences
 Increased stigma and perceived employer
liability because of criminal records
Do you conduct criminal background
checks for any job candidates?
7%
19%
All job candidates
73%
Selected job candidates
No, my organization does not conduct this type of background
check for any of its 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
How influential is/would be the discovery
of each of the following in your decision
to NOT extend a job offer?
Note: n=312.
Many Who Seek Expungement in
Minnesota Live in Poverty
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 Generational poverty – have been living in
poverty for two or more generations (75%
of people in poverty in U.S.)
 Situational – Short time in poverty, often
due to illness, disability, unemployment,
divorce, or death
Many Who Seek Expungement In
Minnesota Live in Poverty
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 Original formula developed during the War
on Poverty in the 1960s
 Has since been adjusted for inflation, but
still based on presumption that families
spend 1/3 of income on food
Current FPG

 Family Size
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1
2
3
4
Income
$10,890
$14,710
$18,530
$22,350
1 million people in MN under 200% FPG
Monthly Income: $2,328 +
Rent (2 Bedroom Apartment): $900 +
Groceries: $600 +
Phone: $60 +
Utilities: $100 +
Personal Necessities: $80 +
Clothes and Shoes: $120 +
School Supplies: $20 +
Medical Expenses: $80 +
Insurance Premiums: $100 +
Transportation (bus): $400 =
__________________________
What does
125% look like
in Minnesota?
(family of four)
negative $132
Lack of Resources
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 Crisis lifestyle
 Financial - lack cash, credit, property, equity, ability to plan ahead
 Emotions and privacy – often unable to choose and control emotional
responses, particularly to negative situations
 Mental and physical health (especially access to stabilizing medications
and healthy foods), substance abuse problems, affects comprehension
 Limited transportation (lack of gas money, car payments; public
transportation can be time-consuming and costly)
 Dependent on benefits (MFIP, GA, SSA, SSI, Unemployment, Child
Support)
 Relationship with friends and family – often also in poverty, money
goes to help others, hard to save for themselves
 No time – multiple jobs, child care, transportation, no energy to plan
How Criminal Expungement Can
Benefit a Person in Poverty
 Career

 Client is able to find employment
 Client is able to pursue advancement at work
 Client is able to live without fear of background
checks
 Housing
 Client has greater choice of rental housing
 Client may qualify for public housing
 Social
 Client is able to leave the stigma of conviction or arrest
behind them
Working with Low Income Clients:
Points to Consider

 Distrust of Lawyers
 Clients may have difficulty trusting you
 Clients may expect that lawyers won’t work
hard on their case unless they’re paid
 Clients may feel like their lawyers can’t
relate to them
 Clients may expect that cultural differences
will impact your representation of them
Working with Low Income Clients:
Points to Consider
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 Distrust of the Legal System
 Clients may feel like the legal system failed them
Bad police officers; Bad lawyer; Bad judge; Bad jury
Railroaded into a plea bargain
Collateral consequences never explained to them
Never understood the process
Thought the case would disappear if they complied
with requirements
 Never had a chance
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Working with Low Income Clients:
Points to Consider
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Acknowledge negative prior experiences
Explain procedures and expectations
Emphasize that you are on the client’s side
Explain that criminal expungement legal
proceedings can’t be held against them or lead to
more punishment
 Explain that they have the right to use the court
system and the remedies that it offers
 Don’t vouch for the criminal justice system
 Be a good ambassador for the legal profession
 Be honest
 Listen
 Advocate
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Working with Low Income Clients:
Maintaining Realistic Expectations
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 Punctuality and Attendance
 Be flexible about meeting times
 Recognize that taking time off of work may not be possible for the
client
 Be professional with the client
 Maintain expectations
 Explain the importance of meetings, court hearings, and scheduling
details
 Emphasize that the purpose of the representation is to help the
client, but the client has to help himself as well
 Impress upon the client the obligations and the potential for success
in Court
 Give the client realistic expectations about time commitments
Working with Low Income Clients:
Maintaining Realistic Expectations

 Realistic outcomes
 Having a lawyer does not guarantee
that the client will win
 Lawyers cannot speed things up if
timelines are dictated by statute or rule
 Lawyers do not have special access to
judges
 Paying for a lawyer does not guarantee
better results than a pro bono lawyer
Working with Low Income Clients:
Transportation and Mobility

 Consider whether your office is accessible by
public transportation or offers free parking
 Give the client easy-to-follow directions over the
phone, including landmarks
 Consider flexible meeting times
 Work with the client’s social worker to ensure
compliance with attorney and court obligations
 Consider meeting clients in their neighborhood
or at a location easily accessible to the client
Working with Low Income Clients:
Children
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 Ask client to make arrangements for childcare,
but understand that client may not be able to do
so
 Have coloring books or other activities on hand
 If children are making too much noise, explain to
client that the meeting cannot continue if the
children do not quiet down
 Emphasize to clients that they cannot bring
children to court
Working with Low Income Clients:
Communication Barriers
 Phone
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 No phone, unreliable service, privacy issues
 E-mail
 No computer or limited online access
 Fax
 Can be expensive, hard to find access in rural
areas
 Photocopies
 Can be expensive
 US Mail
 People who are homeless, in transition, or have
privacy concerns may not want mail
communications
Working with Low Income Clients:
Communication Barriers
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Reading Levels
Language and Cultural Barriers
Legalese
Emotional Reactions to Underlying
Facts
 Attachment to Irrelevant Facts
 Inability to Take Responsibility
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Working with Clients
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 Don’t judge client’s decisions or decisionmaking process
 Remain unbiased in counseling role
 Emphasize that you will keep confidential
information confidential
 Speak to clients as equals
 Maintain realistic expectations about client
Working with Low Income Clients:
Communication Tips
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 Greet low income clients as you would any
client. Be polite, shake hands, invite them into
your office
 Clients may arrive with a third party or
support person. Explain confidentiality issues
and encourage the client to meet with you
alone initially
 Consider whether client needs an interpreter
and be prepared to access interpreter services
Working with Low Income Clients:
Communication Tips
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Offer an explanation of the legal process and expectations
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Speak at a level the client appears comfortable with.
Use simple language to explain common legal terms
Ask clients if they understand your explanations
Keep in mind the difference between what is likely and what is
possible – just because an outcome is unlikely doesn't mean you
should discourage it!
 Allow client to tell his/her story
 Maintain eye contact
 Delay note-taking until client is comfortable
 Don’t interrupt; allow client to tell the complete story if time
allows
 When asking questions of the clients, explain why the
information you seek is relevant to the case
Working with Low Income Clients:
Communication Tips

 Acknowledge issues that do not directly relate to
the underlying case
 Explain that you can’t assist with other legal issues
 Explain that, although some issues will seem very
important to the client, they aren’t useful to the case at
hand
 Be prepared to refer the client to other legal service
providers
 Point clients to LawHelpMN.org for basic information
and service providers available for a variety of legal
topics
Working with Low Income Clients:
Drafting Paperwork

 Read all forms and paperwork out loud
 People are often embarrassed about literacy limitations
and may hide their low reading comprehension from
you
 Explain why the paperwork is an important part
of the process
 Clients may see paperwork as a waste of time – explain
why it’s an important step
 Explain that the client’s input is important as you
draft the paperwork
 The petition is also an affidavit, and must be true and
accurate from the client’s perspective
Working with Low Income Clients:
Gathering Evidence
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 Client may not have evidence
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Moved a lot, lost the evidence
Frustrated by the evidence, threw it away
Can’t figure out what evidence is important
Encourage client to gather evidence while you draft the petitions
 Client’s evidence may not be helpful
 Evidence could be too inclusive or redundant
 Evidence could be viewed in a negative light
 Evidence may not be relevant to the case
 Explain what specific evidence you need and how client
can help you get it
 Be patient – client may have limited access to relevant evidence or
experience embarrassment about presenting it to you
Resources for
Lawyers and Clients
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 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) 353-3000; crimeandjustice.org
Criminal Records:
Where Records are Held
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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
Criminal Records:
The Remedies

 Correction of Records
 Return of Arrest Records
 Pardon Extraordinary
 Statutory Expungement
 Inherent Authority Expungement
Correction of Records - BCA

Stolen Identities
 Contact the Bureau of Criminal Apprehension
 Questioned Identity Project
 Client completes and signs a "Request for Review of Individual's
Criminal History Record Information" form.
 BCA searches by name and date of birth. If a record is located,
fingerprints are taken to compare with the prints on file for that record.
 If prints match, the record is presented for review. If prints don’t match,
client goes through the Questioned Identity Project
Correction of Records - BCA
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Questioned Identity Project
 BCA takes the client’s fingerprints and compares
them to their records.
 If BCA is satisfied that the record belongs to
someone else, they update their records and let
anyone accessing the records know that the client
is a victim of ID theft.
 Client gets a letter from BCA stating that the
holder of the letter is not the subject of the
disputed records.
Correction of Records - BCA
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 If client disagrees with the BCA record, she has
the right to challenge that information by
indicating in writing that part of the record that
she is challenging as being inaccurate or
incomplete
 Upon receiving notification of a challenge, the
BCA shall immediately flag the record in
dispute. Data in dispute shall be disclosed only if
the individual's statement of disagreement is
included with the disclosed data
Correction of Records - BCA

 Within 30 days, CJIS personnel shall examine the record and
trace the data back to the source documents and/or
submitting agencies, to determine the accuracy and
completeness.
 If CJIS personnel determine the record is in error, it shall
immediately be corrected.
 If CJIS determine that information on the record is correct,
they will notify the subject of the record that no change to
the record will be made. CJIS will also notify the subject of
his right to appeal along with the contested cases
procedures.
 If data are correct, but still disputed, the subject may go to
the source of the document to dispute the data.
Correction of Records - Court

 Client must contact the court clerk’s
administrative office in the county that
generated the record (i.e., Pope, Anoka,
etc.)
 Records can be cross-checked against
booking photos, fingerprints, and
descriptions in police reports
Minn. Stat. § 299C.11:
Return of Records
 Arrest but no charge

or
 Charge but dismissal prior to a formal finding of
probable cause
 Here, the determination of probable cause is based on
the full record of whether sufficient probable cause
exists to proceed to trial. This includes where the court
finds a lack of probable cause for arrest without a
warrant under Minn. R. Crim. P. 4.03 as well as where
the court dismissed a charge for lack of probable cause
at the omnibus hearing.
 Does not include a matter dismissed after
successful completion of a diversionary program.
Minn. Stat. § 299C.11:
Return of Records

 May demand return of arrest record
(including photos, fingerprints, etc.) and all
copies. DNA evidence will not be returned
or destroyed.
 Not available if the individual was convicted
of a felony or gross misdemeanor within the
ten years prior to the arrest at issue.
Pardon Extraordinary
Minn. Stat. § 638.02

 Available for convictions only
 Not available for Juvenile Adjudications
 Not available for Stays of Adjudication
 Not available for Petty Misdemeanors
 Mandatory waiting period
 Crime of Violence per Minn. Stat. § 624.712 subd. 5
requires 10 year conviction-free period from time of
discharge from probation.
 All other crimes require 5 year conviction-free period
from time of discharge from probation.
 Waiting period can be waived by Board of Pardons
Pardon Extraordinary
Minn. Stat. § 638.02

 Board of Pardons
 Governor
 Attorney General
 Chief Justice of the Supreme Court
 2010 Statistics
 “The Board, which met on April 14 and October 5, granted
seventeen pardons extraordinary during 2010. Twenty-eight
applications for pardons extraordinary were denied. Ten
additional applications were not considered because the
Board declined to set aside the waiting period. One applicant
was granted a Waiver of the Waiting Period; however, when
the applicant’s pardon extraordinary application itself was
considered, it was denied.”
Pardon Extraordinary
Minn. Stat. § 638.02

 Effect of a Pardon
 Nullifies the conviction.
 Petitioner “shall never after be required to
disclose the conviction” except in limited
circumstances.
 Records remain public with a notation that the
case has been pardoned.
 Petitioner can subsequently seek a statutory
expungement on the basis that the case was
resolved in the petitioner’s favor.
Expungement in Minnesota

 Expungement is the court-ordered sealing
of the government-held criminal records of
an individual.
 Not destruction of a record.
 Sealed records may be opened for future
investigation and prosecution, and for
background checks for law enforcement
positions.
 Two main types: Statutory and Inherent
Authority
Statutory (Minn. Stat. § 609A)

 Subd. 1. Certain controlled substance offenses.
Where proceedings have been dismissed and discharged
pursuant to Minn. Stat. § 152.18, subd. 1
 Subd. 2. Juveniles prosecuted as adults.
Following certification to district court under § 260B.125, if
the person is discharged by the commissioner or has been
discharged from probation
 Subd. 3. Certain criminal proceedings not resulting in
conviction.
All charges in the case resolved entirely in the petitioner’s
favor
Statutory – Minn. Stat. §609A

 Subd. 4. Expungement prohibited.
 Records of a conviction of an offense for which predatory
offender registration is required under § 243.166 may not be
expunged. These are the only offenses that, by law, cannot be
expunged.
 Murder
 Kidnapping
 Criminal Sexual Conduct
 Felony Indecent Exposure
 False Imprisonment
 Soliciting a Minor to Engage in Prostitution or Sexual
Conduct
 Using a Minor in a Sexual Performance
 Possessing Pornographic Work Involving a Minor
 However, it is unlikely that traffic, family matters, and open
files will be expunged.
Resolved In Favor
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 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.
Not Resolved In Favor
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Being found guilty or pleading guilty, even if plea is not accepted by the court.
§ 609A.02, Subd. 3; State v. A.C.H., 710 N.W.2d 587 (Minn. Ct. App. 2006).
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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).
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Being found not guilty by reason of insanity. 609A.02, Subd. 3
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Vacate and dismiss disposition after pleading guilty & completing probation.
State v. Froysland, 246 N.W.2d 435 (Minn. 1976).
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Stay of adjudication. State v. Davisson, 624 N.W.2d 292 (Minn. Ct. App. 2001).
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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?

The statute allows the judge to order ALL
government records – relating to arrest,
indictment or information, trial, or verdict sealed. This includes records held within the
executive branch (such as BCA and DHS).
Recent caselaw limits inherent authority
cases to court records only in most
circumstances.
Statutory Expungement
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Statutory expungement is 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.
Inherent Authority Expungement
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 Where constitutional rights have been seriously
infringed, State v. Ambaye, 616 N.W.2d 256, 258
(Minn. 2000); or
 When constitutional rights are not involved,
“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.” State v.
C.A., 304 N.W.2d 353 (Minn. 1981)
Inherent Authority Expungement

Indicia used in Inherent Authority balancing test:
1. the extent that petitioner has demonstrated
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 limits a judge’s ability to order
records sealed at the Bureau of Criminal
Apprehension and other executive branch agencies
 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.
State v. S.L.H. 755 N.W.2d 271, 275 (Minn. 2008)
 These essential functions include the ability to
vindicate a petitioner’s legal rights and to protect the
judiciary’s strength and independence.
Inherent Authority Expungement

 This includes providing a meaningful remedy for the
petitioner.
State v. V.A.J., 744 N.W.2d 674 (Minn. Ct. App. 2008)
 Helping individuals achieve employment goals is not an
essential core function of the court. S.L.H.
 S.L.H. included a concurrence from three of six justices
that outlines a more expansive view of the scope of the
court’s inherent authority.
 After issuing its decision in S.L.H., the Supreme Court
dismissed the state’s petition for further review of V.A.J. –
after previously granting review. V.A.J.’s precedential
value is uncertain.
Inherent Authority Expungement:
Still good reasons to seek expungement
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 Even where the order is limited to the records held
within the judicial branch:
 Seals some records
 The expungement 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
Juvenile Expungements

 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.
 Courts may use adult case expungement
standards and procedures.
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
 DHS uses the “preponderance of the evidence” standard to
determine whether a person is disqualified, rather than the
criminal court’s “Beyond a Reasonable Doubt” standard.
Petition Timeline

 Contact the county to get a hearing date.
 The hearing date must be at least 63 days
after service of the petition on each
affected government agency.
 After the court issues its order, mandatory
60-day stay to allow for appeals.
The Petition
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 Full disclosure of entire criminal
record, in any state or country
 Reasons for seeking expungement
 Rehabilitation statement
 Supporting evidence
Resources

 Minn. Stat. 245C: DHS
 Minn. Stat. 609A: expungements; 260B.198, subd.
6: juvenile expungements
 crimeandjustice.org
 mncourts.gov
 Minn. Stat. 609B: collateral sanctions
 www.house.leg.state.mn.us/hrd/pubs/bkgdchck.pdf
(house research dept.)
 Minn. Stat. 638: pardons
 Minn. Stat. 364: rehabilitation
Questions?

Laura Baldwin, Criminal Records Atty
John Freeman, Supervising Atty
Council on Crime and Justice
MN Legal Services Coalition
822 South Third Street, Suite 100
2324 University Ave W, Ste 101B
Minneapolis, MN 55415
St. Paul, MN 55114
612.353.3000
651.842.6905
[email protected]
[email protected]
Christy Szitta, Resource Attorney
Volunteer Lawyers Network
600 Nicollet Mall, Suite 390A
Minneapolis, MN 55402
612.752.6649
[email protected]