Most of the one in four Minnesotans with a criminal record have never spent time in prison.
But advocates say that even for those who avoid incarceration, the real punishment begins after they’ve paid their debt to society.
State law allows judges to seal, or expunge, the criminal records of certain offenders, theoretically giving them a clean slate that allows them to seek jobs or housing. But because of an earlier state Supreme Court decision, judges can expunge only court records, not those collected by the state’s executive branch.
Some lawmakers say that has resulted in an expungement process that fails its most crucial test — allowing offenders to put their pasts behind them.
“I see some things coming through the courts that may have greater implications than what we originally intended,” said state Rep. John Lesch, DFL-St. Paul, an assistant city attorney. “People are suffering collateral consequences they hadn’t anticipated.”
In 2013, 1,063 criminal cases were expunged in Minnesota, though not all may have been convictions. Another 1,271 were denied or are awaiting a decision.
Expungements have never been easy to get. Serious offenses such as murder, aggravated assault, drunken driving and sex offender crimes are never expunged. Convictions of minor crimes may be expunged if the offender can demonstrate rehabilitation that would make future offenses unlikely. They are granted only if the benefits to the offender outweigh the disadvantages to the public of closing the records.
Then, in a decision last May, the Minnesota Supreme Court ruled 5-2 that a judge could expunge only the court records of a Nobles County woman convicted of aggravated forgery. The majority ruled that separation of powers barred the judge from sealing her records in the executive branch’s agencies, such as the Bureau of Criminal Apprehension or Department of Human Services. State laws allow a few circumstances where records may be expunged from the executive branch, including certain controlled-substance crimes, juvenile offenders prosecuted as adults or certain crimes that do not result in convictions.
Chief Justice Lorie Gildea wrote in the majority opinion that a judge’s authority could not override such laws as the Minnesota Data Practices Act, which mandates that data created or collected by law enforcement agencies is public information.
The result is that expunged offenses disappear from court records, but are seen easily on background checks conducted through state agencies.
In a sharply worded dissent to the majority opinion, retired Justice Paul Anderson said that not only should the courts maintain control over records they created, but the decision represents “an overly rigid, unduly strict, often unbending, and sometimes myopic pursuit of justice.
“There will be a human cost,” he wrote.
One of the attorneys who argued the Supreme Court case said the decision has rendered expungements of convictions moot.
“The only point now is your personal willingness to go through the process and share with employers that you’ve gotten an expungement and hope and pray it makes a difference,” said Mankato lawyer Jacob Birkholz. “I joke with my clients to wear a sticker that says ‘Judge Approved.’ You can’t hide it, you can’t run from it, you can’t seal it. You’ve got to face the music.”
Birkholz also represents clients like 27-year-old Amber, who is awaiting a judge’s decision on her expungement. She asked that her last name be withheld because of her difficulty in finding jobs in the state. Five years ago Amber was charged with a misdemeanor count of domestic assault after a fight with a boyfriend. She pleaded guilty the next morning in Kandiyohi County and paid a $200 fine. The college graduate didn’t know her record would haunt her until she was repeatedly rejected for apartments, then nutritionist jobs.
“I took responsibility, and it’s like I’m being punished further for it,” said Amber, who works as a server in Arizona.
Lawmakers will hear stories similar to Amber’s at a hearing at the Capitol on Tuesday. Rep. Lesch has drafted a bill that would expand judges’ power to expunge records in the executive branch.
State Sen. Julianne Ortman, R-Chanhassen, who has long supported expungement reform, said that’s a start, but doesn’t address the larger issue of arrest records that, even if expunged, can live forever in cyberspace, or in the hands of private data-mining companies.
“If the information is already out there, how do you get it back? You really can’t,” Ortman said. “And how do you make sure law enforcement has the information they need, but ensure that somebody has the privacy they’re trying to earn back?”
Don Gemberling, a board member for the Minnesota Coalition on Government Information, said that a better solution could involve determining what should be noted and disregarded by the entities that perform background checks.
“We’ve got to find ways to deal with the fact that people do bad things and they get rehabilitated,” he said. “Shouldn’t we be looking at the rehabilitation and saying ‘That cancels out the history’ but not get rid of the history?”
Emily Baxter, director of public policy and advocacy at the Minneapolis-based Council on Crime and Justice, said the Lesch bill could, at least for now, provide a lifeline for reformed offenders.
“I think it’s pretty clear the path that we’re marching down,” she said. “There are fewer and fewer avenues for people who have made mistakes in their lives to achieve a second chance, to move on.”