First-time offenders can regain clean slate in Anoka County

What if you committed a crime, and it was purged from your record before it ever got there?

Since 2009, 160 adults arrested in Anoka County for such felony-level crimes as theft or buying a small amount of drugs have qualified for a one-of-a-kind pre-charge diversion program. These people become ghosts in the criminal justice system for up to two years, and if they satisfy a list of probation requirements, the county won't file a criminal charge.

There is never a public record of the crime, averting a mark that can become a long-term barrier to getting a job, housing or loan.

Minnesota law requires counties to offer pre-charge diversion for juveniles, but Anoka is the only county in the state, and apparently one of the few jurisdictions in the country, to offer the unusual program for adults.

Many counties have programs in which charges are eventually dismissed, but the positive resolution for the defendant remains in public records that a bank or potential employer can view.

This golden opportunity in Anoka County for a clean record doesn't guarantee success. So far, 70 people have successfully completed the diversion program, while 43 have failed, according to the county's most recent statistics. Of 23 participants who made it through and have been out of the program for a year, only two have re-offended, and those were for misdemeanor driving offenses.

"It's a good, low-cost alternative instead of funneling individuals through the justice system, and it avoids the collateral consequences that come with it," said John Kingery, executive director of the Minnesota County Attorneys Association.

The voluntary program saves money because defendants make no court appearances and need less intensive probation, allowing prosecutors to concentrate resources and attention on more serious matters, said University of Wisconsin law Prof. Walter Dickey, reporter for the American Bar Association Criminal Justice Standards Committee on Diversion and Specialized Courts.

It does come with political risks, however.

"You are making a judgment about what cases are going into the program, and you might make a mistake, and it could blow up in your face," Dickey said. "You have more political cover if you charge the cases."

The program is the brainchild of Bob Johnson, who was Anoka County attorney for 28 years before retiring in 2010. Johnson, former president of the National District Attorneys Association, studied the impact of labeling a low-level, low-risk offender as a convicted felon and concluded it too often impeded their ability to become productive citizens.

To launch the program in 2009, he needed the support of his own office, the public defender's office, probation and law enforcement. Some were reluctant to give any offenders such a break, but they saw the program's benefits after it took effect, he said.

The county attorney's office is solely responsible for pre-charge program candidates. The crime victim, if there is one, will be notified if the defendant has met preliminary qualifications for the program.

To be considered, defendants must have no prior or pending felony or gross misdemeanor convictions and no more than three misdemeanor convictions in the past 10 years. Traffic violations aren't included.

They must also give a videotaped admission of their crime.

The dozen felonies that the program covers focus on theft of vehicles or property, check forgery and possession of burglary or shoplifting tools; the loss or damage cannot exceed $5,000 in most instances. A prosecutor screens the potential participant, who must confer with a public defender or his or her own attorney. The participant also must sign a waiver of their constitutional rights, including one to a speedy trial.

Offenders sign a contract under which they agree to pay restitution, undergo a chemical dependency and mental health evaluation, stay law abiding and submit to random urinalysis.

"This is a huge, huge break for these individuals," said Anoka County Attorney Tony Palumbo, Johnson's successor. "We expect perfection."

The majority of those in the program were arrested for theft or buying a small amount of drugs. Typical of the kind of participant is a 40-year-old Minneapolis man who forged a $200 check for a credit application for a car loan in Fridley in February, said Dylan Warkentin, interim director of county corrections.

The percentage of people who make it through the program has surpassed the 50 percent goal projected by officials when it started, Warkentin said. Of the 160 people who have entered it, 10 percent committed a new offense. The low recidivism rate proves the right offenders are being targeted, Warkentin said.

Virginia Murphrey, now chief public defender of the Tenth Judicial District, which includes Anoka County, helped develop the program. She is concerned about the gamble that defendants take by waiving their constitutional rights and agreeing to provide a videotaped confession. A person can opt out of the program and have a trial, but an acquittal still ends up with the charges appearing in public records. Data harvesting, she said, is far easier for companies today and carries more significant damage to a person's life than even a decade ago.

Other jurisdictions

"I think if the focus is on first-time, low-level offenders, it could be more good than harm," Choi said. "Pre-charge diversion is something all of us should be open to thinking about because of the many collateral consequences that come with a conviction."

Milwaukee County District Attorney John Chisholm visited Anoka County to observe the program. His county has a diversion program, but it isn't nearly as comprehensive, and he is considering adopting more of the Anoka County concept.

"The Anoka County model is looked at around the country as a smarter approach to scarce public safety resources," Chisholm said. "You have two categories of criminals: those who habitually irritate us with nonviolent crimes and those who scare us. We want to focus on those who scare us and incapacitate them for a long time. Then you see a reduction in violent crime."