Expungement & Beyond Helping Clients Understand & Address T heir Juvenile and Criminal Record.

1. Expungement & Beyond Helping Clients Understand & Address Their Juvenile and Criminal Record. Joshua Esmay The Council on Crime and Justice

2. Pop Quiz! • How many people in Minnesota are in prison, jail, on probation or on parole? • A. 1 in 5 • B. 1 in 18 • C. 1 in 26 • D. 1 in 31

3. How many people were under correctional control in Minnesota in 1982? • A. 1 in 8 • B. 1 in 28 • C. 1 in 76 • D. 1 in 98

4. correctional control in Minnesota Source: pewstates.org, The Long Reach of American Corrections Minnesota

5. Size of Minn. Stat. 609

6. Minnesota has the _____ highest rate of people under correctional control in the nation • A. 2nd • B. 8th • C. 23rd • D. 48th

7. the COST $460 million per year on correctional control

8. How many people in Minnesota have a criminal record? • A. 1 in 4 • B. 1 in 12 • C. 1 in 24 • D. 1 in 32

9. Source: The Sentencing Project’s Trends in US Corrections

10. Disparities Start Early Source: The Minneapolis Foundation’s 2012 OneMinneapolis Report

11. Juvenile records are private and are expunged once the youth turns 18. • True or False?

12. One third of US Young Adults arrested by age 23 • 30.2 percent were arrested for an offense other than a minor traffic violation • Increase in arrests for drug-related offenses, zero-tolerance policies in school, and a more aggressive and punitive justice system Study published in 2011 Pediatrics journal

13. One HALF of BLACK YOUTH arrested by age 23 Many males – especially black males – are navigating the transition from youth to adulthood with the baggage and difficulties from contact with the criminal justice system. Study published in 2014 Crime and Delinquency journal

14. One in Three • According to the DOJ’s BJS, over 92 million individuals have a criminal history on file in state criminal history repositories. • With about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population – estimated at about one in three or four adults – has a criminal record on file

15. Thanks to Robert Stewart, U of M Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

16. Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

17. Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

18. Source: Shannon, Sarah, Christopher Uggen, Melissa Thompson, Jason Schnittker, and Michael Massoglia. 2011. “Growth in the U.S. Ex-Felon And Ex-Prisoner Population, 1948 to 2010.” Paper presented at the 2011 Annual Meetings of the Population Association of America.

19. the hidden cosT • The $460m doesn’t include what communities spend to house, train, educate, counsel, treat, employ and otherwise transition individuals leaving prison or jail.

20. Expungement

21. What are Criminal Records? • Bureau of Criminal Apprehension (BCA) • Minnesota Court Information System (MNCIS) • Police Department • City Attorney • Sheriff’s Department • County Attorney • State Attorney General • Department of Corrections • Department of Human Services • Private data-miners • Private theft databases

22. What Records Say

23. Access to Juvenile Records General Rule Per Minn. Stat. §260B.171 juvenile records are private. • They cannot be accessed by the general public. • They can be accessed by the subject.

24. Exceptions to General Rule • Extended Jurisdiction Juvenile- if unsuccessful on probation and adult sentence is executed, • Certification to adult criminal court, • 16 or 17 years juvenile charged with felony-level offense receive a public court hearing and subsequent public record Minn. Stat. §260B.163.

25. Informed Consent Typically obtained through release form contained in employment or rental application: Minn. Stat. 13.05 § subd.4(d) • Minn. Stat. §260B.171subd.4 prohibits the court from releasing non-public juvenile records. • Minn. Stat. §299C.095 prohibits the BCA from release any juvenile records, even with informed consent. • Local law enforcement not covered- 2009 half of police departments surveyed released private juvenile records with informed consent.

26. Basics of Expungement Law • Court-ordered sealing of government-held records • Not destruction of a record • Sealed records may be opened for future investigation and prosecution, and for background checks for law enforcement positions.

27. Four Types of Criminal Expungement in MN (in a nutshell) • Minn. Stat. §299c.11 “administrative” seals law enforcement & BCA • Minn. Stat. §609A “statutory” seals all agency records • Inherent Authority State v. MDT seals only court records absent “appropriate circumstances” • Juvenile Delinquency Minn. Stat. §260B.198, sub. 6 & In re JJP…expunges…it’s complicated…

28. Minn. Stat. §299C.11:Return of Records • Arrest but no charge or • Charge but dismissal prior to a formal finding of probable cause and • No felony or gross misdemeanor conviction within the ten years prior to the arrest at issue.

29. Statutory (Minn. Stat. §609A) • 1. Certain controlled substance offenses. • 2. Juveniles prosecuted as adults. • 3. Certain criminal proceedings not resulting in conviction. • All charges in the case resolved entirely in the petitioner’s favor • Expungement prohibited. • Where predatory offense registration is required: • Murder, kidnapping, crim sex, etc.

30. Statutory - Resolved In Favor • Dismissals and acquittals • Dismissal of grand jury indictment. State v. K.M.M., 721 N.W.2d 330 (Minn. Ct. App. 2006). • Dismissed, separate incidents or charges where petitioner plead guilty to other separate incidents or charges. State v. JRA, 714 N.W.2d 722 (Minn. Ct. App. 2006). • Continuances for dismissal. State v. C.P.H. , 707 N.W.2d 699 (Minn. Ct. App. 2006) where no guilty plea was entered. • Arrests without charges, where not otherwise eligible for 299C.11. • Never pleading guilty, admitting guilt, or being found guilty.

31. Not Resolved In Favor • Being found guilty or pleading guilty, even if not accepted by the court. §609A.02, Subd. 3; State v. A.C.H., 710 N.W.2d 587 (Minn. Ct. App. 2006). • Admissions of guilt as a pre-requisite to diversionary programs & deferred guilty pleas. State v. J.Y.M., 711 N.W.2d 139 (Minn. Ct. App. 2006). • Being found not guilty by reason of insanity. §609A.02, Subd. 3 • Stay of adjudication. State v. Davisson, 624 N.W.2d 292 (Minn. Ct. App. 2001). • Alford plea, where the defendant admitted there was sufficient evidence to convict, but maintained innocence. State v. Henkensiefken, 2005 WL 1431913 (Minn. Ct. App. 2005).

32. What is an Inherent Authority Expungememt? • A way to expunge anything that does not fit under the expungement statutes. • A creature of case law. • The issue: in what circumstances may a district court judge seal criminal records maintained outside of the judicial branch? • Judicial records are usually not a legal issue. • Scope of relief has expanded and contracted every few years .

33. State v. MDT; The Petitioner’s Story • 3 felony counts of aggravated forgery for altering a prescription for Robitussin, from 200 ml to 400 ml; • Admitted to police that she altered the Rx because she wouldn’t be able to afford a second co-pay; • Pled guilty and received a stay of imposition, discharged from probation early; • Obtained GED and College Degree but employment limited to grocery store cashier because of background checks;

34. State v. MDT: Court of Appeals • State v. M.D.T., 815 N.W.2d 628 (Minn. App. 2012) • Published Court of Appeals case allowing expungement of criminal records maintained by the executive branch. • Broadest reading of S.L.H. exceptions so far. • Incorporates public policy into decision. • Supreme Court granted review June 27, 2012.

35. State v. MDT: Supreme Court • 831 N.W.2d 276 (Minn. 2013). • District court abused its discretion by sealing executive-branch records. • A court’s authority to expunge its own records does not empower it to expunge executive branch records, even if generated in the judicial branch.

36. State v. MDT: Supreme Court • Separation of Powers and respect for legislative mandate for executive branches • Contravenes §609A’s limited, enumerated list of offense types for expungement. • Contravenes the Data Practices Act—presumption that government data are public. Minn. Stat. §13.01, §13.02 • “Because 15 years have not elapsed since the discharge of MDT’s sentence, the Legislature has determined…that MDT’s criminal records are public data.”

37. Can I ever Get My Client’s Executive-Branch Records Sealed Under MDT? • What if your client was not ultimately convicted? • Vacate & Dismiss • Stay of Adjudication • Reversed on Appeal (C.A.) • Exonerated by DNA, etc. • Otherwise ultimately dismissed after guilty plea/verdict • What if your client’s case is so old that the legislative mandates for access to the data do not apply? • Data Practices, DHS/MDH, Sentencing Guidelines

38. What about everyone else? Benefits of a judicial records expungement: • Still may be useful for minor offenses that have not been reported to the BCA • The order is better than nothing, and if it is well drafted, could help your client with job interviews, housing applications, etc. • Write your own proposed order. Make it persuasive. • Update the BCA records. Send a demand letter to the BCA with the expungement order. Minn. Stat. §13.01, §13.04 • Safe Hiring – limits employer’s liability. Minn. Stat. §181.981

39. Alternatives to Expungement Agency Relief • Work with the remedies available through the agency that may have issued an adverse decision your client. • Department of Human Services/Department of Health Disqualification Appeals (Minn. Stat. §245C; DHS Fair Hearings, Minn. Stat. §256.045; OAH Hearings (Minn. R. 1400.510-1400.8400) • Professional Board Licensure Appeals (varies based on board) • Public Housing/ Section 8 Denial Appeals

40. The BCA Fix

41. Alternatives to Expungement Pardon Extraordinary • Minn. Stat. §638 • http://www.doc.state.mn.us/boardofpardons/default.htm (Board of Pardons website) • MN Board of Pardons may grant a “pardon extraordinary” 5-10 years after discharge of sentence. • Benefit: sets aside and nullifies the conviction; eliminates DHS/MDH disqualifications based on convictions; seals public BCA record and adds “pardoned” note to file. • Drawback: does not seal the record.

42. Juvenile Expungements • Minn. Stat. § 260B.198 subd. 6 states that the court “may expunge an adjudication of delinquency at any time that it deems advisable.” • Procedures for juvenile expungement are not defined in the statutes. • Does JJP bring clarity?

43. Issues Addressed by Supreme CourtIn Re. JJP831 N.W.2d 260 (Minn. 2013) • What is the test or burden on proof for expungements under §260B.198, subd. 6? • Does §260B.198, subd. 6 authorize expungement of executive branch records when the court deems such act “advisable.” • Does an expungement of juvenile records from DHS records usurp DHS’s mandate to conduct background studies and in so doing violate the separation of powers doctrine?

44. JJP (The Good) • Expungement of Juvenile Records Under §260B.198, subd. 6 does not violate Separation of Powers. • Clarifies legal standard:

45. JJP (The Bad) • Meaning of the Phrase – “Adjudication of Delinquency” • Court found that the term “adjudication of delinquency” is limited to the order adjudicating the juvenile delinquent. • Not a process but a single event. • Additional documents in the executive branch file such as arrest data, investigation records, and the petition of delinquency do not logically fall within the term “adjudication of delinquency.” • Thud!

46. JJP (The Confusing) • How does sealing the order of adjudication affect the reaming BCA and DHS records?

47. 2014 Expungement Reform • Pre-session bipartisan bicameral workgroup formed by Rep. Debra Hilstrom and Sen. Bobby Joe Champion. • Senate File 2214 – Champion, Petersen, B. • House File 2576 - Melin ; Hilstrom ; Hertaus ; Lesch ; Dehn, R. ; FitzSimmons . • Passed the House 84-48 and the Senate 58-4. • Signed by Governor Dayton May 14. • 2014 Session Laws Chapter 246.

48. What does it do? Expands 609A.02 Subd. (3) to include: • Stays of Adjudication & Diversion; 1 year after completion of sentence if crime free • Convictions for petty misdemeanors & misdemeanors; 2 years after discharge of sentence if crime free • Gross misdemeanors; 4 years after discharge of sentence if crime free • Select non-violent felonies; 5 years after discharge of sentence if crime free

49. What Does it Do?Juvenile REcords Clarifies that 260B.198 Subd. (6) includes all records relating to the arrest and delinquency proceedings.

50. What else Does it do? • Exempts from the list of expungeable Misdemeanor and Gross Misdemeanors any crime involving domestic violence or sexual assault until July 2015. • Allows for expungement without a petition with prosecutors consent, notice to victim, & judicial review of burden. • Effects Private Databases: requires deletion of expunged records for business screening services- if they know. • Allows for exchange of expunged records between law enforcement agencies without court order. Only for orders after enactment.