Restoration of Rights Project – Minnesota Profile

Guide to restoration of rights, pardon, sealing & expungement following a Minnesota criminal conviction

2014 Report by the Council on Crime and Justice

Chained to the Past: An Overview of Criminal Expungement Law in Minnesota —State v. Schultz

Geffen, Jon and Letze, Stefanie, 31 William Mitchell Law Review Iss. 4 (2004-05) (partially superseded; check Minnesota profile, above, for later caselaw and statutory enactments)

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Minnesota enacts four major record reforms in 2023 (10/18/2023) - 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.
Momentum grows to restore voting rights to people with a felony (2/3/2021) - Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida's landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction. In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa's governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction: 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others. 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, Minnesota, Missouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama's bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony. The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action). In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration. Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.
New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<
New era for expungement reform? Too soon to tell. (8/3/2016) - A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws. In "A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels," Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late. He admires Indiana's broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk. He considers recent legislation in Minnesota to fall into a middle category -- and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws. Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches. Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment. His bottom line, with which we agree, is that "[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle."
50-state guide to expungement and sealing laws (1/13/2016) - The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers' attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records. The National Clean Slate Clearinghouse, recently announced as part of President Obama's reentry initiative, will "provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services." This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise. We hope these resources will prove useful in that effort. Note that terminology and procedure differ significantly from state to state, so that those interested in more specific information about the scope, operation and effect of a particular state's laws should consult the state-by-state profiles accessible through the Resources tab on the home page of this site. For example, while the term "expungement" may involve destruction of records in a few states (e.g., Pennsylvania), more frequently it means a limited restriction on public access to records. For example, in Kansas certain employers and licensing agencies continue to have access to criminal records notwithstanding an expungement order from the court. In Indiana "expungement" entails no limit of public access at all -- although some records may be sealed after expungement. In some states a judicial set-aside or vacatur involves a sealing of the record (e.g., Michigan, Washington) but in others it doesn't (e.g., California). Most jurisdictions authorize sealing or expungement of non-conviction records upon petition to the court. In the past few years a number of states have modified their provisions for sealing or expungement of records, but most of these new laws reach only minor offenses or non-conviction records, and frequently involve long eligibility waiting periods that defeat their usefulness for reentry purposes. Conspicuous exceptions are the comprehensive new judicial relief schemes enacted in Indiana and Minnesota, and Arkansas' reorganization and expansion of its existing expungement laws. A few states, notably Kansas and Utah, have broad expungement laws dating from the 1970s. Note that there is no statute providing for expungement of federal convictions, and almost no authority to limit access to non-conviction records -- a circumstance that has led several federal sentencing courts to consider expungement through their ancillary jurisdiction. The most well-known of these cases is U.S.v. Jane Doe, now on appeal in the Second Circuit, in which Judge John Gleeson ordered expungement of a fraud conviction of a woman he had sentenced 13 years before. (Briefs in the Doe case are available here.)
Long waits for expungement frustrate public safety purposes (2/18/2015) - Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods. If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison. Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt. The preamble to the new Louisiana law says it is intended "to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk. In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison). Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn't people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing? It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow -- but the reference to employment opportunities upon "reentering the community" suggests they had something more immediate in mind. Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person's full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison. The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods. New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief. Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous. Expungement of arrest records is another matter, though concepts of "reentry" and "recidivism" don't strictly apply where a person is not convicted. So this raises three questions: 1) why can't we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren't we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward? The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry. New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states. Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future. Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence. Question #2 gets a more hopeful answer: more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing. This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation. But again, this is not a "reentry" remedy strictly speaking since by definition the person never leaves the community. And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation. The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted. These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.) Question #3 is rhetorical.
Louisiana’s new expungement law: How does it stack up? (1/16/2015) - Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people -- Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor's pardon -- very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That's why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies. We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law's effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Waiting periods According to its preamble, the ostensible purpose of the new Louisiana law is to "to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment." See Art. 971. The law states an aim to provide relief from post-9/11 restrictions on TWIC credentials necessary to work in ports or on vessels under the federal Maritime Transportation Security Act of 2002. Id. However, its eligibility waiting period seem inconsistent with these purposes: A felony record may not be expunged until ten years after completion of sentence, which itself may be many years after leaving prison. Such a long waiting period is not likely to do much to "break the cycle of recidivism" or address the issues facing those "reentering the community" from prison. Even misdemeanants have to wait five years after completion of sentence to apply. Moreover, because the federal MTSA only restricts eligibility for TWIC credentials only for a ten-year period for most offenses, the new law does nothing to ease restrictions on maritime employment. By the time a person with a felony conviction becomes eligible for expungement, their TWIC eligibility has already been restored. The waiting periods for felony expungement under the three other comprehensive new expungement laws are shorter -- though still long enough to make us question their utility in reducing recidivism or assisting reentry. Eligibility for felony expungement in Indiana is three to five years years from completion of sentence or eight years after conviction (unless the prosecutor agrees to a shorter period) and five years after conviction for a misdemeanor. In Minnesota the waiting period for expungement of all eligible felonies is five years after completion of sentence (two years for misdemeanors). Arkansas allows "sealing" of felonies five years after completion of sentence, though misdemeanors are eligible for sealing as soon as the sentence is completed. (Compare the relief available as early as sentencing under the Vermont Uniform Act and Colorado's new drug expungement laws.) A Louisiana record may not be expunged if the person has been convicted of a crime during the waiting period, or has charges pending. The same is true in Indiana and Minnesota. Like Minnesota, Louisiana places no limit on the number of felonies that may be expunged during a person's lifetime, though in Louisiana a felony may only be expunged once every 15 years. In Indiana, a person may seek expungement of multiple offenses through one expungement petition, but only one petition may be granted in a person's lifetime. In Arkansas, an individual may only "seal" one felony conviction. Eligible offenses Unreasonable waiting periods aside, the Louisiana law takes a relatively expansive approach to eligibility, especially compared to the limits Arkansas and Minnesota place on the types of felonies that are eligible for relief. Under Louisiana's law, the only felonies that cannot be expunged are those for violent offenses, sex offenses, crimes against minors, and drug trafficking offenses (mere possession with intent to distribute is eligible for expungement). The only other jurisdiction with comparable scope is Indiana, which has similar limitations on violent offenses and sex offenses, but places no limit on the types of drug convictions that may be expunged and does not bar expungement of crimes against minors. Minnesota allows expungement of a list of enumerated minor non-violent felony offenses, and only minor drug distribution offenses may be expunged (most possession-only offenses are eligible). Arkansas limits sealing to Level C and D felonies. Standards Under Louisiana's new law, expungement is mandatory if a person meets all of the eligibility requirements. This is also the case in Indiana for misdemeanors and minor felonies, though not for more serious crimes. Minnesota and Arkansas require a judicial finding based on a balancing test. In Minnesota, a felony can only be expunged if the court determines that the benefits of an expungement to the person seeking it are commensurate with concerns of the public and public safety, and with the burden on courts and public authorities to issue, enforce, and monitor an expungement order. In Arkansas, an order to seal records depends on a court's determination that it is "in the interest of justice" based on consideration of a menu of factors. The fact that an expungement is mandatory in Louisiana if the eligibility requirements are met also means that expungement may be granted without a hearing. A hearing must be held only if the prosecutor or law enforcement objects to the expungement request on grounds of ineligibility. A hearing is generally required in Minnesota and Arkansas. Use of expunged records Where Louisiana's law looks most different from the other three laws is in its relatively limited legal and practical effect insofar as employment and licensing is concerned. Expungement of a felony conviction record in Louisiana essentially does two things: 1) It prohibits the state from disclosing records to the general public (as in almost all other states, the record remains available to law enforcement, prosecutors and courts); and 2) it relieves a person of any obligation to disclose the record, or the fact of the record's expungement. The Louisiana law does not have a restorative effect on any rights lost (most basic civil rights are otherwise restored automatically upon completion of sentence), nor does it restrict the use of expunged records by licensing authorities or employers. It has no effect on sex offender registration and does not restore handgun rights (long gun rights are not lost) -- except, surprisingly, in domestic violence offenses. Though Louisiana's law generally prohibits the state from releasing expunged records to the public, the law provides some significant exceptions. Most notably, it specifically allows disclosure of expunged records to a number of specified licensing boards, including those governing health care, the insurance industry, social work, and the bar, all of which are authorized to consider criminal records when making licensing determinations. It also allows disclosure for the purpose of screening applicants for licenses and employment involving the care or supervision of children. Accordingly, while Louisiana's law permits individuals whose records have been expunged to deny that they have been convicted, the range of permissible disclosures by the state qualifies this benefit. The other three states also allow expunged records to be used as predicate offenses, and for sentencing and sex offender registration purposes. However, all three states restrict how an expunged record may be used by private and public entities in evaluating eligibility for employment, licensure, and other opportunities. Indiana's law is by far the most expansive, prohibiting employers, licensing boards, and anyone else from discriminating against a person based on a record that has been expunged, and even from asking about such a record. Minnesota takes a similar approach by prohibiting discrimination, but only as it applies to public employment and licensing (with a large and growing list of excepted employers and licensing boards). Under Arkansas's Criminal Offender Rehabilitation Act, a licensing board may not disqualify a person based on an "expunged" record -- though, since Arkansas' new law now styles what was once known as an "expungement" a "sealing," it is unclear what affect this provision currently has. Indiana and Minnesota additionally encourage hiring of those with expunged records by prohibiting admission of expunged convictions as evidence of negligence in negligent hiring actions. The Louisiana law contains no analogous provisions. Third party providers of records The Louisiana law does make some attempt attempt to addresses the problem posed by third party dissemination of expunged records, but it does so in a way that is likely to be ineffective in practice. The law prohibits private providers of criminal records (other than news organizations) from disseminating expunged records, but only if they have been put on notice by the subject of the expunged record. This notice must be sent by certified mail and contain a certified copy of the expungement order. Until a particular provider receives notice from the recipient of an expungement, the provider is entirely free (at least under state law) to disseminate the record to anyone, even if they have other notice it has been expunged. To ensure that expunged records do not reach a potential employer, a person would have to give notice to each and every private provider out there. This a practical impossibility, of course, but, even if it could be done, it would be ineffective because the only providers obligated by receiving notice are those that are not governed by the federal Fair Credit Reporting Act (FCRA). Considering that a vast majority of private providers of criminal records are subject to FCRA, it is hard to see why this provision was included at all. The Indiana and Minnesota laws offer significantly greater protection against irresponsible private providers. Here again, Indiana's law is the stronger, placing a blanket prohibition on dissemination of expunged records by "criminal history providers." This prohibition is unqualified: Dissemination is prohibited whether the provider has notice of it or not, putting the onus on the provider rather the individual. The Minnesota law occupies a middle ground, prohibiting dissemination by a "business screening service" if the service has notice of the expungement from any source. Arkansas's law does not address the issue of third party providers of records. Conclusion Louisiana's new expungement law represents a significant and commendable move toward giving those with criminal records a chance to regain opportunities lost as a result of conviction. However, although it expands eligibility for expungment to a relatively large number of people, and makes relief mandatory upon a determination of eligibility, its benefits are limited by long waiting periods and limited legal effect. If Louisiana is serious about expanding employment opportunities to those with felony convictions, it would do well to enact measures limiting dissemination and use of expunged records by employers and other third parties, as Indiana, Minnesota, and (to a more limited extent) Arkansas have done. Until expungement in Louisiana is more than a mechanism to limit official disclosure of records, those who might otherwise be eligible to apply for it may wonder whether it is worth the trouble and expense. * Louisiana does have a quirky law from 1981 that permits the Bureau of Criminal Identification and Information to remove the records of anyone over the age of 60 "from active dissemination to eligible agencies" so long as the person hasn't been arrested for 15 years. The removal isn't mandatory, though, so it offers little comfort to anyone young or old.
Michigan takes baby steps on criminal justice reform (1/9/2015) - Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs. In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs. A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor's desk for signature. These "baby steps" leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded. Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session. In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers: a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies. Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior "minor offenses," a term that was very narrowly defined. See Mich. Comp. Laws 780.621. Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from "minor offenses" to "misdemeanors." (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated). In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside. As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers. [NOTE: Another law enlarging the basic set-aside authority was signed by the governor in early 2015. Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan's Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate. Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder. Like other states with similar employer protections--such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] -- the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6] The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a "silver level" or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department. The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country. She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.
Minnesota’s sweeping new expungement law takes effect (1/1/2015) - Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched. The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that. It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues. The standard for granting expungement remains that under current law, requiring the court to balance private and public interests. While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance. Here is an explanation of the new law’s specific provisions. Overview: The new law revamps Minnesota Statute 609A, which currently allows for the sealing of certain drug charges, juveniles who were prosecuted as adults, and criminal proceedings not resulting in convictions or guilty pleas (i.e., dismissals and acquittals). The new law will allow courts to seal records of those who have successfully completed diversion programs, as well as those who were convicted of petty misdemeanors, misdemeanors, gross misdemeanors, and certain low-level non-violent felonies. This expansion of the statutory remedy grants courts the authority to seal records held by executive branch agencies such as the Bureau of Criminal Apprehension (the primary source of criminal information for employment, professional licensure, and housing background checks), the Department of Human Services, and the police. This addresses a major gap that for the last several years has rendered the criminal expungement remedy illusory for the majority of petitioners. Eligibility: Under the new law, persons will be eligible for a “full expungement” (sealing of both judicial and executive branch records) in the following situations:[1] 1) All pending actions or proceedings resolved in the petitioner’s favor (i.e., by acquittal or dismissal); 2) Completion of all terms of a diversion or stay of adjudication, and petitioner has not been charged with a new crime for at least one year since successful completion of program or stay; 3) Conviction of a petty misdemeanor or misdemeanor conviction (or stayed sentence), and petitioner has not been convicted of a new crime for at least two years since completion of sentence;[2] 4) Conviction of a gross misdemeanor conviction (or stayed sentence) and petitioner has not been convicted of a new crime for at least four years since completion of sentence;[3] 5) Conviction of specified low-level, non-violent felonies (or stayed sentence) and petitioner has not been convicted of a new crime for at least five years since completion of sentence. The fifty eligible felonies range from fairly common fifth degree controlled substance and sale of simulated controlled substance offenses, as well as theft of $5000 or less, receiving stolen goods, and aggravated forgery, to more obscure matters such as rustling and livestock theft and altering livestock certificate. The exhaustive list of eligible felonies can be found at Minn. Stat. 609A.02(b)1-50. Standard: As under current law, expungement remains an extraordinary remedy granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with 1) the possible disadvantages to the public and public safety if the record were sealed and 2) the burden on courts and public authorities to issue, enforce, and monitor an expungement order. To this end, courts may grant select records expunged while leaving others unsealed. However, if a prosecutor agrees to the sealing of a criminal record, the court must (“shall”) expunge the record in eligible cases without requiring a petition unless it determines the interests of the public and public safety outweigh the record bearer’s interests. Crime Victims: The new bill also grants further relief to individuals whose criminal matters were a result of victimization: if the court finds that the context and circumstances of the underlying crime indicate a nexus between the criminal record and the person’s status as a crime victim, the expungement shall restore the person to his or her status prior to the arrest. In doing so, the person shall not be guilty of perjury if he or she fails to acknowledge the record in response to any inquiry made for any purpose. In making the determination, the court may request a statement from a victim services organization or licensed health care provider. See Minn. Stat. 609A.03 subd. 6a. Confirmation of Expungement: Helpfully, the new bill allows for the petitioner to request each agency and jurisdiction that receives the order granting expungement send a letter to the petitioner confirming that the record has been expunged. See Minn. Stat. 609A.03 subd. 8. Remedy for Violated Order: The new bill allows for an individual whose record has been expunged to bring an action under Minnesota’s Data Practices Act against a government entity that knowingly opens or exchanges the expunged record. See Minn. Stat. 609A.04. Private Data Mining Records: The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a. Employer and Landlord Protection: The new bill extends further protection for employers and landlords who hire or rent to individuals with expunged criminal histories: information relating to a criminal history record of an employee, former employee, or tenant that has been expunged prior to the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord. See Minn. Stat. 609A.03 Subd. 5 (e). Housing Eviction Expungements: The new bill allows the court to expunge records relating to a housing eviction at the time judgment in favor of the defendant is entered, or any time thereafter upon motion of the defendant. Minn. Stat. 504B.345, subd 1 (c)2. Limitations of Criminal Record Expungement Order: While the new law allows for more records to be sealed, it also grants criminal justice agencies the authority to open, use, and exchange sealed records without a court order, for investigation, prosecution, sentencing, or probation, or other correctional purposes. If the expunged record had been an acquittal or dismissed matter, the agency must obtain an ex parte court order to access the record. Further limitations include the accessibility of expunged records of conviction without a court order for purposes of evaluating prospective employees within criminal justice agencies and for background checks in education-related employment, unless the expungement order is directed specifically at the Board of Teaching or the licensing division of the Department of Education. The court may also order an expunged record opened upon request by the victim of the underlying offense, if the court has found that the record is substantially related to a matter for which the individual who has been victimized is before the court. Notably, the expunged record that is opened or exchanged remains subject to the expungement order in the hands of the person receiving the record. That is, the record may not be used or shared outside the purposes listed above. Juvenile Record Expungement: For matters resolved in juvenile court, petitioners can file for an expungement under Minn. Stat. 260B.198 subd. 6. Not unlike 609A, the juvenile statutory remedy preexisted the new law; however, its vague language (allowing the courts to expunge an “adjudication of delinquency at any time it deems advisable”) was recently interpreted by the Minnesota Supreme Court to grant the lower court the ability to seal only the order adjudicating the juvenile delinquent, rather than the entire executive branch agency’s file (e.g., the arrest record or the charging document), rendering the remedy essentially meaningless.[4] However, as of January 1st, 2015, the court may expunge all records relating to a juvenile delinquency matter at any time if the expungement of the record would yield a benefit to the individual that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies in issuing, enforcing, and monitoring the order. See Minn. Stat. 260B.198 subd. 6 paragraph (b) 1-8 for indicia the court will consider in making the determination. * * * * * * * * * [1] The Volunteer Lawyers Network’s Chris Hanrahan addresses ambiguities of timing and notice in his article, Using the New Second Chance Expungement Law. Josh Esmay from the Council on Crime and Justice offers quick tips to petitioners in this Minnesota Public Radio article. [2] The bill specifically excludes from expungement relief any convictions for domestic abuse, sexual assault, violations of orders for protection, no contact orders, and harassment restraining orders, and stalking. However, this exclusion (Minn. Stat. 609A.02 subd. 3(c)) is set to expire on July 15, 2015. [3] See above. [4] See In re Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013)
How risky is pardoning? Not as risky as committing uninformed journalism (12/15/2014) - An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence. Riffing off a recent high profile pardon application, it begins like this: "Mark Wahlberg's plea for a pardon has focused fresh attention on excusing criminal acts - something governors rarely do because it's so politically risky." But pardons do not "excuse" crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology. The AP article (Steve LeBlanc, "Wahlberg Plea Underscores Risk of Issuing Pardons") supports its tired "politically risky" thesis with three examples from the last twenty years of governors' pardons gone bad: two involve bad staffing, and the third dubious causality. (Mr. LeBlanc could have found plenty more examples of poor pardon staffing resulting in executive embarrassment in the recent annals of presidential pardoning.) The article does not mention that Massachusetts is one of only a handful of states whose governors have stubbornly refused to use their beneficent executive power even in the most sympathetic cases. It fails to see any irony in Governor Patrick's delay in acting on expanded criteria for issuing pardons he announced almost a year ago. It also does not mention that pardoning has been alive and well for some time in more than a dozen states, and has enjoyed a renaissance under current governors in Illinois and California. While former Maryland governor Robert Ehrlich is no longer the only responsible living pardoner in the country, as this writer once proposed, he certainly has the right idea about pardon being "part of the job" for any governor. Ehrlich has embarked on a commendable campaign to educate governors to this idea. It would be nice if more members of the working press were interested in encouraging responsible executive action instead of using misinformation to discourage it. At least the editorial pages seem to have figured it out.