Tag: criminal records

Minnesota’s sweeping new expungement law takes effect

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) Read more

American criminal record exceptionalism (I): A Spanish comparison

A comparative perspective is extremely useful for appreciating the status of individual criminal record information in the U.S.   In this and future blog posts, we would like to share information about criminal record law and policy in continental Europe and the U.K., including some important decisions of the European Court of Human Rights. We begin with Spain, the continental European country we know best. On the basis of past and on-going research, we believe that Spain’s law and policy on criminal records is representative of continental Europe. This is not surprising because, to some extent, all E.U. member states share a legal tradition and are subject to E.U. laws and ECHR’s judgments. However, to be sure, there are some national differences among E.U. member states. The Spanish constitution contains both a right to honor and a right to privacy. Both rights provide protections against disclosure of discrediting and embarrassing information, including information about arrests and convictions.  Honor can be injured by both truthful and untruthful information because even true information can embarrass and humiliate. For example, even if it is true that X was convicted of prostitution, disclosing that information might violate her right to honor. Therefore, Spanish courts do not focus on the truth or falsity of the injurious communication, but on whether the communicator had a right to disclose the information. Thus, a journalist would be acting unlawfully and in violation of the right to honor by reporting  X’s conviction unless the information is considered “newsworthy,”  that is, relevant to create a politically informed public opinion, in which case the journalist’s free speech right trumps X’s honor right. The Spanish constitutional privacy right seeks to protect and promote individual dignity. It guarantees the individual a personal sphere shielded from public scrutiny. Disclosure of information about an individual’s personal life, whether by a government official or a private party, violates this right. Unfortunately, to date no Spanish criminal law treatise or law journal writer has addressed whether a criminal conviction is personal information belonging to the individual’s private sphere  However, in one high profile case the Constitutional Court held that the Elections Agency violated an individual’s constitutional right to privacy when it requested and obtained his criminal conviction record from the National Criminal Register. (See Sentencia Tribunal Constitucional (STC) July 22nd, 1999, Numero 144.) While this Constitutional Court decision said that information about a criminal conviction is protected by the right to privacy, another of the Court’s decisions suggested  that publicizing an administrative sanction did not violate the right to privacy. To say the least, the law on this question is unclear. In Spain, as in continental Europe generally, criminal records are considered personal information and treated confidentially. The conviction database is held in a national criminal register, which receives information from courts, not police. There is no corresponding national database of arrest information. Information about criminal convictions is not available from courts. In fact, while criminal court proceedings are open to the public, the verdict or judgment is generally not announced in open court. It is, of course, communicated to the defendant, but  it is not available to the media or  to curious individuals. Lower court judges are prohibited from publishing criminal judgments.  All superior courts’ judgments are published in a public web, however the defendant’s name and other identifying characteristics are anonymized by a national agency. The European Convention on Data Protection provides that “Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.” In compliance with the Convention, the Spanish Personal Data Protection Law (PDPL) states that:(1) personal data can only be maintained in a database from which information can be retrieved with the consent of the affected person; (2) judicial judgments are not public data; and (3) only specially designated government agencies can create criminal offender databases. The Spanish Constitutional Court has held that the PDPL provides broader privacy protection than the Constitution. It protects personal data, that if used by third parties could affect an individual’s rights. Although the PDPL does not prohibit publishing data drawn from public sources, the DPA has ruled that a criminal judgment is not a public source. Additionally, only specified governmental agencies can create or maintain databases populated with individual criminal history information. Therefore, posting to a website information about a named individual’s criminal conviction(s) is unlawful. There are no publicly accessible individual criminal history databases or private information vendors who sell. While Spanish law affirms an individual’s right to control the dissemination of criminal history information that pertains to her, criminal conviction information is used in Spain, e.g. in granting firearms licenses, residence permits and in certain exceptional hiring decisions by private employers. Employment discrimination based on criminal record is not unlawful. Indeed, Spanish law prohibits individuals with (the equivalent of felony) criminal records from a wide range of government employments, but only until the criminal record is expunged (usually within a few years).   This post draws from “Are Criminal Records a Public Matter: The USA and Spain,” 14 Punishment & Society 3 (2012). Read more

Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.   Should a shoplifting conviction be an indelible scarlet letter? Not in California What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance? In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record. Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians. New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people. People who have successfully completed their sentences should be free to rejoin society without disabling consequences.- These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal. The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism. Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding. While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet. But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one. Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates. But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society. Read more

A pardon celebrates the life of a public defender

One of the 12 pardons granted by President Obama on December 17 went to Albert Stork of Delta, Colorado, long-time advocate for indigent criminal defendants on the rural Western Slope.  Al Stork pled guilty in 1987 to filing a false tax return, and served six months in federal prison. While his conviction came about in an unusual way, what makes Al’s case so special is what he did with his life afterwards. Al Stork’s conviction arose out of his family circumstances. In the early 1980s, one of his two older brothers was an elected prosecutor in Colorado’s Sixteenth Judicial District; the other was a fugitive from Colorado authorities, having spent most of his life (as Al put it) “either in jail or on the lam.” Al himself, then in his early 20s, was leading what his defense lawyer described years later as “an unexceptional and unmotivated middle class life,” working construction and selling a little marijuana on the side. The four-year federal investigation that resulted in Al’s 1987 tax conviction was focused on an effort to identify his fugitive brother Wayne’s assets. Al’s downfall was his inability to help in this effort, coupled with his failure to report as income the small amount of money Wayne had given him over the years. (Al recounted in his pardon application that his DA brother was “embarrassed at having to testify in the grand jury that some of the down payment for his house had come from his fugitive brother.”)  During the course of the investigation Al and his wife lost all of their assets, including the house he had built, and were forced to move into one room in a neighbor’s basement. After Al pled guilty and was sentenced to a short prison term, he and his wife separated. He described the period as one in which his life was “crumbling.” Twenty-five years later, his defense lawyer Hal Haddon described what happened next in a letter supporting his former client’s request for a pardon: Mr. Stork . . . emerged from federal prison with a passion to assist the indigent prisoners with whom he had lived — a disadvantaged segment of the community he had never previously known or understood. In pursuit of that commitment, Mr. Stork attended law school, successfully graduated and was admitted to the Colorado Bar after persuading the Bar Admissions Committee of the Colorado Supreme Court that he had learned a huge lesson and was a mentally and morally fit to join the legal profession. Al’s path to law school was not quite as smooth as Mr. Haddon’s letter might suggest, since he left prison with no college education and no source of support. Undaunted, he borrowed money to attend community college and later graduated from the University of Denver, though it took him another three years to find a law school that would admit him. He and his wife Carol had by then reconciled, and he supported himself by waiting tables. In his pardon application he credited his prosecutor brother as a role model: “His encouragement and my observations of him prosecuting cases but at the same time having compassion for those he was prosecuting provided me the impetus to pursue my law career.” (His prosecutor brother is now an elected judge, while Wayne Stork is serving a federal prison sentence for drug trafficking, with state gigs for parole violations to follow.) After graduating from law school in 1999, Al went to work for the Colorado State Public Defender’s office. Eight years later, he opened his own law office and began taking cases through the State Office of Alternate Defense Counsel, becoming the principal court-appointed attorney for indigent defendants in several rural Colorado counties. He kept a low profile but was obviously held in high esteem by his colleagues, judging by the many letters they wrote in support of his pardon application. They described him as a modest and generous colleague, a skilled and thorough advocate, and an empathetic counselor who saw his clients as individuals and did not “judge them or categorize them.” One described how he “consistently encourages his clients to be better than they think they are, and certainly better than those who are about to judge them think they are.” Another described how diplomatic Al had been when a county judicial selection committee tried to recruit him to run for a judgeship, not knowing about his conviction. In his pardon application Al described how his own experience with the criminal justice system informed his work as a defense lawyer: I felt I had already received somewhat of an education in criminal law, though I was a reluctant student. I understood choices that one makes that can place them on the other side of the law, the power of the legal hammer when such choices are made, and the consequences thereof. I also understood the anxiety, the fear, and the unknowns that gnaw at a person every moment of every day when you are under scrutiny by law enforcement for those bad choices. I carried that knowledge when I pursued my legal education, and continue to carry that knowledge with me as a practicing attorney. I take the title counselor seriously in the sense that my job is not just to get the best result for my client legally but also to empower each individual I represent to help them realize they too can rise above their past. . . . My belief that I carry over into my representation of indigent clients comes from a belief that we all have a spark of light within us even in the darkest of times. That is not abstract for me — it comes from my own experience. By way of apology for not being able to report more varied community service in his pardon application, Al noted how he had cared for his seriously-ill mother throughout his early years as a public defender, until her death. In explaining his reasons for seeking a pardon, Al mentioned how much his brother had loved serving as a judge, and how he himself might like to run for local office but was afraid his conviction would prove “distracting” in a campaign unless he could “give public assurance” that he had put his past behind him and been “officially forgiven.” * * * * * * * * * * * * Al Stork was one of my favorite pardon clients. It was therefore particularly sad for me when his wife Carol called me last spring, when Al’s application had been pending for about three years, to report that Al had been suddenly and catastrophically struck by irreversible and inoperable brain cancer. By the time the pardon came seven months later, Al was no longer able to appreciate that he had won the prize he sought, an affirmation of a life well-lived from the highest levels of government. Still, the pardon means a great deal to Carol Stork, and to Al’s friends and colleagues who were inspired by his perseverance in the face of adversity and by his dedication to defending the poor against the power of the state. It means a great deal to me, who was honored to have been able to help him present his case for forgiveness. That said, while Al’s case is exceptional, it is not unique. There are many other applicants for pardon whose stories can tell good news about the justice system through recognition of redemption by the government that once condemned them. I hope that in days to come the president will want to use his benign power to even greater public advantage. Postscript:  Al Stork died of brain cancer on January 2, 2015.  He is mourned by his family and friends, and by the many people who never met him but were inspired by his story.     Read more

Wisconsin high court holds youthful offenders entitled to “a fresh start”

The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence. Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request. In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged. Criteria for expungement Defendant Hemp had been granted expungement for a felony offense of possession of marijuana with intent to deliver, and had successfully completed his probation term.  However, local officials had not filed the necessary papers to enable the court to expunge his conviction record.  Hemp subsequently filed a petition for expungement (to require the court to act upon its earlier, condition order granting expungement). However, between his completion of probation and his follow-up regarding expungement, Hemp had been charged with possession of marijuana, and the prosecutor charged this offense as a felony because of the previous marijuana conviction.  Hemp’s attorney on the new charge recognized that by effectuating the earlier expungement order, Hemp could get the new charge reduced to a misdemeanor for possession, first offense. The lower court, its sympathy for the defendant likely diminished by his pending charge, ruled that the defendant had the responsibility for providing the sentencing court with proof that he had successfully completed probation and that his delay in doing so provided a basis to deny expungement. The Wisconsin Supreme Court disagreed.  It interpreted the statute to require of the defendant only that he complete probation successfully (and that he not be convicted of another offense during the probation term), but not that he also complete the administrative tasks of either the Department of Corrections or court personnel.  Because Hemp had satisfied the statutory criteria, he was automatically entitled to have the previous expungement order effectuated. Expungement erases conviction, not just court record The Hemp opinion also supports a broad interpretation of the legal effect of expungement in Wisconsin: the court stated that the statute “offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming law-abiding and productive members of the community.” Expungement allows individual defendants a chance to move past the barriers that can be created by a criminal record by giving them “an incentive to rehabilitate,” which, in turn, “promotes the public’s safety” [citations omitted].  Indeed, expungement allows “offenders to . . . present themselves to the world—including future employers – unmarked by past wrongdoing.” This “unmarked by past wrongdoing” statement helps resolve ambiguity regarding whether expungement means that the conviction no longer exists or simply that court records are no longer publicly accessible. The unanimous decision provides support for a job applicant answering “no” to a question about prior convictions if his or her only conviction has been expunged.  At the same time, a cautious applicant may decide to disclose the expunged conviction voluntarily to some employers, since expungement does not affect law enforcement records and certain employers may learn of the underlying legal history through a background check.  Nonetheless, the Hemp decision not only benefits the individual defendant, but also supports the policy of exempting young defendants from many of the consequences that accompany a criminal conviction.   Read more