Minnesota enacts four major record reforms in 2023
Thanks to a series of criminal-justice reforms enacted earlier this year, Minnesota has burnished its reputation as a national leader in reintegration and criminal record reform. In a year in which there have been far fewer criminal record reforms than in the recent past, Minnesota’s performance stands out for the variety and breadth of relief granted, in many cases automatically. Here are the four major new laws:
- Expungement was made automatic for both non-convictions and a range of conviction records, effective January 1, 2025
- The pardon process was entirely overhauled to make this relief more available, and expungement for pardoned convictions was made automatic
- Felony disenfranchisement was limited to periods of actual incarceration
- A law legalizing adult possession of cannabis made expungement automatic for a broad range of cannabis convictions.
These four major new authorities are described below. We expect that the Minnesota legislature’s exemplary performance in enacting these important new provisions will be in for further recognition in our annual round-up of new record reforms.
Automatic expungement First, as part of an omnibus criminal justice package passed in May (SF 2909), Minnesota made expungement automatic for a wide range of records already eligible for expungement by petition, becoming the 12th state to do so. Effective January 1, 2025, convictions for petty misdemeanors (aside from traffic and parking offenses), most misdemeanors, and many non-violent felonies will be automatically expunged, after conviction-free waiting periods ranging from two to five years. Non-conviction records, including cases involving deferred and stayed adjudication, will also be expunged automatically. (“Expungement” is used interchangeably with “sealing” in Minnesota, but a preexisting law provides for destruction of uncharged arrest records by the Bureau of Criminal Apprehension.) These reforms will apply retroactively, and the law sets up a process by which the Bureau of Criminal Apprehension will identify eligible records within 30 days of the effective date, expunge its own records, and notify the courts so that they may take corresponding action.
This wide-ranging reform builds on a 2014 law that established a petition process for people to expunge their records. Many—though not all—of the offenses that were previously eligible for expungement by petition will now be expunged automatically. For a full list of which offenses were excluded from the 2023 reform, see Minn. Stat. § 609A.015, subd. 3(b)(2-4). The 2023 law also amended the laws governing expungement by petition, reducing waiting periods and making additional drug convictions eligible for the first time.
Pardon and clemency reform SF 2909 also dramatically overhauled the pardon system in Minnesota. Under the Minnesota Constitution, the state’s Board of Pardons is comprised of the governor, the attorney general, and the chief justice of the state supreme court. However, a state law required the Board’s decisions to be unanimous, a requirement that was upheld by the Minnesota Supreme Court in its 2022 decision, Shefa v. Ellison. In addition, the pardon process was opaque and cumbersome, tending to discourage applicants and produce few grants. The slate of reforms to the pardon process is evidently intended to reverse this trend. To begin with, SF 2909 does away with the requirement of unanimity, allowing the Board to approve pardons based on a majority vote, so long as the governor is in the majority.
SF 2909 also created a new, nine-member Clemency Review Commission to hold hearings and advise the Board, replacing a system that effectively gave the commissioner of corrections veto power over clemency applications. As just one example of how applicants were discouraged, under the pre-existing process the board’s staff made a preliminary determination about an applicant’s eligibility for relief before they were even given an application form to fill out. Thanks to the 2023 law, applicants may generally seek clemency for any conviction five years after discharge, rescinding the 10-year eligibility waiting period that applied to certain more serious convictions. The new Commission was established effective August 1, 2023, and the new procedure will take effect on July 1, 2024.
To better ensure due process and minimize arbitrary decision-making, the Commission must abide by an extensive list of criteria when evaluating applications and provide for open and public hearings. Moreover, once a conviction has been pardoned, Minnesota will now for the first time automatically expunge all records relating to that conviction. Expungement of pardoned convictions will be retroactive.
The New York Times published a lengthy story about the operation of the Minnesota Pardon Board under the new law’s modification of the prior unanimity requirement, which is well worth a read. “‘I Want to Be Forgiven. I Just Want to Be Forgiven.’ When the Minnesota Board of Pardons meets, supplicants have 10 minutes to make the case for mercy.” It remains to be seen whether the restructured pardon process, which will be fully effective in the summer of 2024, will make pardon more freely available than in the past.
Restoring the right to vote In addition, under another newly signed bill (HF 28), individuals who lost their right to vote because of a felony conviction will have that right restored if they are not actually incarcerated, joining 21 other states with similar limits to felony disenfranchisement. Prior to the 2023 law, it was an open question if a person could still be denied the right to vote based on unpaid fines and fees. But with HF 28, Minnesota has made it clear that it rejects this modern-day poll tax.
Cannabis expungement The last of the four major new authorities legalized adult possession of cannabis, and will offer a clean slate to thousands of Minnesotans who have been convicted in the past of marijuana offenses, in some cases automatically. Under HF 100, misdemeanor convictions for the sale or possession of marijuana in the fourth and fifth degree will be automatically expunged, as well as non-conviction records. According to the state’s Bureau of Criminal Apprehension, more than 60,000 marijuana misdemeanor cases will be eligible for automatic expungement, though it may take the Bureau up to a year to fully wipe the slate clean in those cases.
HF 100 also created a new Cannabis Expungement Board, which will review nonviolent felony marijuana conviction records and determine if they should be expunged or resentenced. Misdemeanor and petty misdemeanor records that were not eligible for automatic expungement may also qualify for review by the Board. Under this process, expungement is “presumed to be in the public interest unless there is clear and convincing evidence that an expungement or resentencing to a lesser offense would create a risk to public safety.”
At the bill’s signing. Governor Walz noted that “Legalizing adult-use cannabis and expunging or resentencing cannabis convictions will strengthen communities. This is the right move for Minnesota.” Lt. Gov. Peggy Flanagan added on this same occasion: “By expunging nonviolent cannabis convictions, we are removing the barriers that prevent thousands of Minnesotans from fully returning to work, to their communities, and to their lives.” This is how we make safer communities.”
Additional detail about these new laws is provided in the Minnesota profile from the Restoration of Rights Project.
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