Expunging Criminal Records

Gov. Arne Carlson

Comments from Minnesota’s Governor, 1991-1999

From the Rights Stuff Newsletter, April 2009

"If you want to increase the rate of recidivism, there is an easy way to do it — and that’s to make sure the person coming out of prison is forever unemployed."

- Gov. Arne Carlson

Comments from Former Governor Arne Carlson

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Gov. Arne Carlson

Question: What do you see as the obstacles facing someone with an arrest or conviction record who is seeking to become a productive member of society? What do you think should be done about them?

Gov. Arne Carlson: The justice system is premised on, one, if you commit an infraction of the law and you’re punished, once that punishment ceases you go back into society as a normal member of society. That is the expectation. That’s not to suggest that states haven’t compromised that, but that was the original expectation.

Do you believe that expectation is largely being met, or are there some obstacles we need to address?

There are some very difficult calls. One is on the sexual predator — we know that the likelihood of recidivating is enormously high and so it’s not out of line for society to exercise or impose certain restrictions, be it some monitoring devices or even registration. We now accept the notion that if you are a sexual predator, you will be identified within the community and there will be expectations that you can’t go within certain distances of schools, playgrounds, etc. That’s not unreasonable to protect the safety of society.

What about someone who has committed a less serious crime, perhaps years ago. Should employers have a right to know about that sort of thing? Should landlords?

I would be very reluctant to withhold information from employers. But the dilemma then becomes, do they have the right to impose some sort of discrimination that is unfair? And so those two have to be balanced out, and it may be ultimately you have to lay out some guidelines as to what an employer can do with the information. If a person has been convicted of embezzlement, you don’t want them to be the CFO of a company. Those kinds of limitations are not unreasonable. But does that mean that he can’t work in the underwriting department? No. It does not mean that. And so maybe it would be well for the Department of Human Rights to draft some overall guidelines in cooperation with the Chamber of Commerce, etc. that would allow an individual to function to the highest level of his talent, with the proviso that he not go back into the field where he misapplied his talents.

Wisconsin has a law that requires an employer to consider the circumstances of a person’s previous conviction, and whether it’s relevant to the job.

That sounds reasonable.

Would you suggest that kind of legislation for Minnesota?

I don’t think that’s unreasonable at all. I think that’s fair.

There are proposals in Minnesota that could make it easier for an individual to seek expungement of a criminal record, and provide a procedure for judges to consider certain criteria. Do you have any thoughts on that issue?

I would be very careful on expungement. Because you are then granting government the power to erase relevant pieces of a person’s background. You’ve got to be very careful about that. I would tend to take a dim view of it.

How should we address the larger issue: getting people who have had involvement with the law back into society, while protecting society from those who might want to again do harm?

So much of the United States is dependent upon law, as opposed to just good common sense. And laws have terrible limitations, they really and truly do. I think we should start to rely more and more on good common sense. There is nothing wrong with symposiums and workshops and bringing the employer into the solution. I would strongly recommend that at least a few hours a year be set aside for that kind of a symposium to occur, so that companies and particularly their human resources departments can better understand what kind of responsibility we have.

If you want to increase the rate of recidivism, there is an easy way to do it — and that’s to make sure the person coming out of prison is forever unemployed. That will give you your highest rate of recidivism. And so that shows you the silliness of that kind of a policy.

With respect to human rights, one thing that has been pointed out is that arrest and conviction records can have a disproportionate impact on communities of color.

Absolutely. There is no question about that. We would like to assume that we have a perfect justice system — it’s pretty obvious that we don’t. We have a good one, but it’s far from being perfect. We also know that it’s tilted in favor of those who have the financial resources to provide good, competent counsel. We define poverty as lack of money. I would argue that that’s not the most important concern — the most important concern is the lack of power, lack of access. When you live in a community that is impoverished, that’s not where your lawyers live. Your doctors don’t live there, your university professors don’t live there, you don’t have a professional class. And that’s really the most difficult challenge:to realize that you in fact are powerless. I was a victim of that as a child. I’ve never forgotten it. And if it hadn’t been for a schoolteacher, I probably would have been thrown in some institution

What should we be doing to address these disparities?

There was a wonderful piece on television yesterday about a young man who had just formed a company that was spun off from Google. And it was cited in this particular story — this is going to be one of the growth companies. His father was a Mexican immigrant who worked in the fields. That’s the kind of story we should start to learn to celebrate.

The bias that we have towards immigrants is appalling. And we really haven’t punctured that. My parents came over from a foreign country, they could not speak English. They had to go through the normal challenges that any immigrant has, and that’s true of just about everybody. And yet we seem to be very unwelcoming towards immigrants today, and we have to be very careful about that. Because the truth is, immigrants for decades now have not only performed all lot of tasks we don’t really like to do ourselves, but aside from that, think of all the enormous business opportunities that they ultimately gave us.

Government is there to maximize people’s opportunity for success, not to minimize them. And I think that for the last ten or so years, we’ve had way too much discussion on television and radio — and too much screaming and shouting — at “those immigrants.” They weren’t the ones who caused the Madoff scandal. They didn’t create the mortgage mess.

We seem to be putting more people in jail than in most other countries, and keeping them under some sort of criminal justice system supervision for a longer period of time. What are your thoughts on that trend?

We are going to have to re-examine that. When you start to take a look at the cost — not just of prisons, but particularly of juvenile facilities — they are extraordinary. In my day, I think it cost more to go to the Hennepin County Juvenile Center and places like that, than it did to go to Harvard. That’s an extraordinary expense, and yet it’s one that’s automatically funded without dispute.

This country is slowly beginning to realize that it’s not the wealthiest country in the world. We’re really quite broke, and we are going to have to ration our resources. We’re going to have to be much more prudent than we have been in the past. And part of that prudency extends to whether you want to continue to build more prisons and fewer schools, or whether you’d rather build more schools and fewer prisons. And that gets us to the issue of those people who use drugs. Is that really the right remedy: to put them in a cell and lock them up? Is that the smart thing to do? Or are there some other ways that are much more cost efficient?

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