Expunging Criminal Records

Expunging Criminal Records and Providing a Second Chance

From the Rights Stuff Newsletter, April 2009

A debate over the need to help ex-offenders rejoin society and the requirements of public safety heats up. We present six different points of view on some key issues.

Note: The information and interviews in this section appeared in the April 2009 edition of the Department of Human Rights newsletter, The Rights Stuff. The newsletter includes additional material related to this topic.

Introduction & Overview

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In Minnesota, one out of every 26 adults is in prison, on parole, on probation, or under some form of supervision by the correctional system. That places Minnesota near the top, out of 50 states and the District of Columbia, with the fourth highest percentage of adults under correctional control.

For some who are alarmed at these numbers, the good news is: Minnesota puts fewer people in prison, as a percent of its population, than any other state expect Maine. We use parole and probation more than almost any other state.

But the long-term consequences for those who are sentenced to probation are often the same as for those who do hard time behind bars: the stigma of being convicted — or even arrested — can make it almost impossible to find a job, especially in a tough economy. Finding a place to live may be equally challenging as landlords screen out applicants with criminal histories. Then there’s the loss of basic civil rights, including the right to vote. Ironically, those who commit less serious offenses and are given probation may lose their rights for more years than those who go to jail, as a probation period can be far longer than a prison sentence. In fact, only one out of four disenfranchised Minnesotans is incarcerated.

If one is a person of color, the odds of going to jail or otherwise being under correctional supervision — with the civil rights, employment and other consequences the law requires or the stigma entails — are far greater. About ten percent of Minnesota’s African-Americans have lost the right to vote through our state’s felon voting ban. Nationally, blacks are four times as likely as whites to be under correctional supervision.

How did we get here? In 1982 less that one percent of Minnesotans were under correctional supervision; 25 years later there had been a 284 percent increase, according to a study just released in March 2009 by the Pew Center on the States. The percentages skyrocketed as legislators across the nation responded to calls to get tough on crime by putting more people behind bars, or subject to longer terms of correctional supervision.

No one wants to be perceived as “soft on crime.” But a growing number of legislators, community organizations, researchers and others are asking if convicting and sentencing so many of our fellow citizens is necessarily the best way to reduce crime or make us safer.

In February a group of advocacy organizations, ex-offenders, and lawmakers came together for a “Second Chance Day on the Hill,” citing what they see as the devastating effect of the many collateral consequences of criminal convictions upon Minnesota communities.

“There are currently over 200 collateral sanctions under Minnesota law — the unofficial barrier created by the stigma of a record — and hundreds of thousands of Minnesotans who must overcome these barriers,” said Judge Pamela Alexander, President of the Council on Crime and Justice, in a news release. “While it is important for people to face the consequences of criminal activity, once they have served their sentence they must be given attainable paths to employment and housing, so that they can fully contribute to the health of our communities.”

The issues raised by critics of current criminal justice policies do not lend themselves to easy answers, upon which a consensus is likely any time soon. What should an employer have a right to know about a job applicant’s history of arrests or conviction? What should an employer be able to consider, and at what stage in the hiring process? What does a landlord have a right to know? Should a criminal record be able to be expunged, and under what circumstances? When should civil rights, including the right to vote, be restored? How can we balance the rights of society, employers and others with the need to provide those who have paid for the crimes with an opportunity to move beyond their past?

And — of interest to those on all sides of the debate — what approach is most likely to reduce crime and make us safer in the long run? What’s fair? And what works?

This session a series of bills have been proposed in the Senate and House that at least begin to deal with these issues. They are, in the view of at least some of their proponents, an important but still modest beginning on the road to ensuring a “Second chance” for thousands of Minnesotans, while enhancing public safety.

None of the bills currently under consideration go as far as laws that already exist in some of our neighboring states. In Wisconsin, for example, under the state’s Fair Employment Law, an employer may ask whether an applicant has any pending charges or convictions, but these can only be given consideration if the offenses are substantially related to the particular job in question. The employer is prohibited from inquiring into an arrest that did not lead to a conviction.
In Illinois, that state’s Human Rights Act prohibits an employer from refusing to hire someone because they have an arrest record. An employer may lawfully consider convictions, unless a conviction had been expunged.

The Minnesota Human Rights Act (MHRA) does not have such a provision — an arrest or conviction record is not specifically protected under the MHRA, as it is in Wisconsin, and under current law an employer may ask about a job applicant’s past involvement with the criminal justice system. But courts have held that employers cannot regard a previous arrest or conviction as an absolute bar to any job. The kind of blanket prohibition could have an adverse impact on other protected classes, such as race, and violate the Act.

The federal Equal Employment Opportunity Commission (EEOC) has similarly held under Title VII of the Civil Rights Act of 1964, “that since the use of arrest records as an absolute bar to employment has a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.”

The Minnesota Department of Human Rights is a neutral agency. In addition to investigating charges of discrimination and other responsibilities under the Human Rights Act, the Department seeks to “educate to eliminate” discrimination by helping to encourage a dialog on issues that are important from the point of view of civil and human rights.

In this issue of The Rights Stuff, we present some comments from six Minnesotans with unique perspectives on the issues raised by legislation proposed to ensure a “Second Chance” for those who have been become involved with the criminal justice system. They represent different and sometimes opposing interests, but tend to share at least some common ground: the belief that we must protect society, but must also provide an opportunity for some who have made mistakes to eventually rejoin society as productive citizens.

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