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Expunging Criminal Records

Mark Haase

Comments from the Director of Public Policy on Advocacy, Council on Crime and Justice

From the Rights Stuff Newsletter April 2009

"We’ve created this perpetual punishment cycle. In Minnesota there is currently no remedy for people who have taken the right steps, who have finished their sentence and they’re trying to rebuild their lives and do the right thing."

- Mark Haase

Comments from Mark Haase

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Question: When we think about our criminal justice system and policies that affect how those who are leaving the system may re-enter society, how does Minnesota compare with other states?

Mark HasseMark Haase: One thing that is really important to think about is that Minnesota does have one of the lower rates of incarceration in the country. We fall down in the 49th or 50th place in the percentage of people who are incarcerated. But the Pew Center on the States just came out with a report in March and it’s called “One in 31.” One in 31 Americans are under some form of correctional supervision, including people who are on probation or parole. And when you look at those numbers, Minnesota is actually 8th in the country in the percentage of people under some form of correctional supervision. One in 26 is the number in Minnesota. And the per capita rate in Minnesota under correctional supervision has increased by 278% since 1982.

We are good about not incarcerating people -- which I think is good, they can usually do better when they are in the community and able to move on with their lives. But when you talk about the collateral consequences -- both the statutory barriers, and the stigma that comes along with a conviction -- those barriers are just as great for people who don’t go to prison. So really you have to look at that whole big number, and at racial disparities, also. Minnesota is up in the top of the country in a disproportionate number of minority populations who are under correctional supervision.

What are the consequences of these policies for those with arrest or conviction records who are seeking employment?

Huge. I have somebody I am working with on expungement. When he was 19 years old he was convicted of burglary. He is now in his late 20s. This individual has gone to apply at places, and they say if you have a felony don’t bother to apply. Technically, I think that’s a violation of the equal opportunity employment laws, because the EEOC has said that if employers make blanket exclusions it has a disparate impact. Another person who was going to testify (at a Senate hearing) is a Navy veteran and was a Navy contractor after that. About 10 years ago he had a felony terroristic threats conviction, pretty much the only thing on his record. He recently was talking to employment service providers -- non-profits that help place people -- and a counselor said that based on this record, about the only thing he can do is be a cook. So its both statutory barriers, and the stigma, that’s going to be more and more a problem as the economy has problems.

Has anyone proposed that we adopt legislation similar to Wisconsin’s, that requires an employer to consider whether a conviction record is relevant to the job being sought?

Not currently. We’re trying to find ways to get employers on board and to help them do the right thing. We have a program where we’ve developed a curriculum and do trainings for employers. And a (proposed) civil liability bill says that certain types of records can’t be admitted in a lawsuit against an employer. An expansion of that in the future could be, if it’s a felony over seven years old, then that can’t be admitted into evidence either.

What would you say to those who would argue that if a job applicant has been arrested a number of times — even if not convicted — that is something an employer should have a right to know?

They talk as though there are a lot of people running around with multiple arrests, and no convictions. There may be some. But people who we have coming in, who need help, also have some convictions. If I was renting to someone and they had a lot of recent arrests, I guess I would maybe want to know about that. But on the flip side, arrests aren’t supposed to mean anything -- innocent until proven guilty. We have found in our research that African-Americans are much more likely to get those arrests and have them dismissed -- that’s how the police police some of those areas. They just pick up everybody who’s involved, book them, and then let them go.

Given the availability of data on the Internet, how practical is it to expunge a person’s criminal record? Once information is on the web, isn’t it out there for good?

That comes up a lot, and it’s a legitimate concern -- expungement is definitely not a complete remedy because of that. But sometimes it’s brought up as an excuse not to do anything. A lot of employers do use the more reputable data collection companies -- they generally update their records, and they use the BCA a lot. So expungement is not perfect, but it is helpful.

How did we become eighth in the country in the number of people under correctional supervision? What has been responsible for that trend in Minnesota?

Our laws have gotten tougher, especially with respect to drug sentencing. It’s a very politically popular for politicians to say they are getting tough on crime by increasing penalties, and that’s what we’ve been doing for the past 30 years. But if we keep making it harder and harder for people to move on from their past, to get jobs and housing, then the likelihood that they are going to reoffend is going to be greater.

We’ve created this perpetual punishment cycle. In Minnesota there is currently no remedy for people who have taken the right steps, who have finished their sentence and they’re trying to rebuild their lives and do the right thing. Because of current expungement law, and because Minnesota doesn’t have any certificate of rehabilitation, they are basically fighting against a conviction that could be 10 or 20 years old. We’ve got to have some kind of opportunity for people to move beyond that past.

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