Expunging Criminal Records

Philip Carruthers

Comments from the Director, Prosecution Division, Ramsey County Attorney’s Office

From the Rights Stuff Newsletter April 2009

"Long periods of probation are usually tied to really, really serious crimes. So we’re not talking about a bar fight. We’re talking about a sex crime, or a really serious crime of violence."

- Philip Carruthers

Comments from Philip Carruthers

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Question: How is your point of view as a county attorney different than some of the proponents of the current legislation around the idea of a second chance?

Philip Carruthers: As county attorneys and prosecutors, our duty is to the public at large, and not just the offender. If you’re a defense attorney, for example, you’re only duty is to the offender. I’m not saying that (advocacy organizations) are not concerned about the public, but I think they tend to be more offender oriented. They’re dealing with reentry issues, housing and employment, relative to that individual. I’m not saying that those issues don’t have some implications for public safety -- because they would certainly argue that if we don’t have good reentry systems for offenders, they may go back to committing new crimes. So I do think that they are public oriented, but we are public oriented in a different way, probably more focused on public safety.

If you seal a criminal record through expungement, we’re concerned about the public safety implications of that. If a person commits a new crime, is it going to be available for sentencing, is it going to be available for investigation purposes? Let’s say that their new crime has a similar modus operandi. We are also concerned if they get into a job that may be a highly responsible job, where maybe they have access to money, or maybe they have access to new victims. So we have a lot of concerns about those types of issues.

What’s your view of bill SF1231, that would change certain expungement requirements and procedures?

We’re strongly opposed to it, especially in its current form.

What’s the concern about it?

It essentially sets up a judicial pardon. We have a pardon board in Minnesota. It’s set up under the Constitution, and it’s made up of the Governor, the Chief Justice, and the Attorney General, and they can pardon somebody. But judges don’t have currently the power to pardon somebody, and essentially we see this as a judicial pardon. The problem is, we’ve got almost 300 judges in the state, and every judge is going to have different criteria, different standards, and there is no kind of central philosophy or public goal that would be carried out if it’s up to a judge. The judges are going to try to do a good job, but every judge is different. It’s kind of like instead of having laws passed by the Legislature as a whole, we start having laws passed by each individual legislator. We’ve got a lot of different points of view and there is not going to be uniformity.

So that’s one concern. But if I could just take this issue further: we’d encourage there to be some general philosophy, and some minimum criteria, to qualify for an expungement. Things like the person has had a clean criminal record for at least five years, has successfully completed chemical dependency treatment and aftercare, has paid restitution to the victim, and just generally shown that they’ve made significant changes in their life. Under the current bill, those are factors that can be considered, but there are no minimums.

For example, somebody could come in and get an expungement for ten convictions, or three convictions. They could have a pending case under the bill. Now would a judge do that? Hopefully not, but it’s totally discretionary with the judge. So we think there should be some minimum standards. It’s in society’s interest to encourage offenders to rehabilitate themselves, so why don’t we say, “here’s what you have to have done, so that you can prove you have rehabilitated yourself.”

I understand that in Minnesota, more so than in other states, people will often remain under court jurisdiction for an extended period after their release. As a result, some must wait a long time to reenter society. Is that desirable?

Long periods of probation are usually tied to really, really serious crimes. So were not talking about a bar fight. We’re talking about a sex crime, or a really serious crime of violence. And that’s another question: are there certain offenses that are so serious by their nature that were just going to say, sorry. Or there is a really long waiting period at least -- things like murder, criminal sexual conduct cases.

Or one issue, drunk driving. Normally drunken driving stays on your record for five years, your probationary period may only be a year. Now why does it stay on your driving record for five years? Because insurance companies should be able to evaluate that when they figure out how much your insurance is going to cost. Otherwise, those of us who don’t have drunk driving, we are paying for that person who has a drunk driving conviction.

And, by the way, a lot of people get discharged early from probation. So that’s another thing that you have to keep in mind.

We’re not saying what the precise definition of this waiting period should be. We are just saying there should be a waiting period. The details may have to be worked out -- with some offenses, there are longer periods of probation. We are saying there should be some standards and some minimums in the law. It shouldn’t just be totally discretionary.

The county attorney’s statement of principles suggests that because so much information is available on the Internet, expungement may have limited effectiveness and that the legislature may want to consider some alternatives. What might those alternatives be?

We are a criminal justice group; we don’t normally deal with housing or employment. But you could have housing programs or employment programs, things like that. You can pass all the laws in the world, but it (a criminal history) is out there. Newspapers follow who’s been charged with crimes. In small towns, everybody just knows. And you can try to regulate what these companies do, but in fact they are operating in the Cayman Islands, where Minnesota state government has no effective control over them.

So you could have programs that say: look, this is a person who had a drug problem but has rehabilitated himself -- and we’re not trying to hide that. But he is a different person than he was, and we are going to encourage certain housing opportunities by making him eligible for certain housing types, or some sort of subsidy. There are a lot of housing programs out there that encourage the availability of housing. Have ones that include people who have rehabilitated themselves.

A certificate of rehabilitation is one of the ideas that is floating out there. That is something we support, in concept, because that seems like a realistic way to do it. You’re not trying to put the horse back in the barn, when it’s already three miles down the road. You are just being upfront and saying, “hey, this guy’s got a conviction, but he’s changed.”

Is there anything you’d like to add?

I think that this is an issue where it’s easy to oversimplify it, and make the other side’s position sound unreasonable or extreme. The bottom line is, we are not opposed to broadened expungement. We want to see offenders encouraged to rehabilitate themselves, and we are willing and eager to work with the legislators who are proposing these bills, and with advocates of broader expungement to come up with workable proposals that help offenders, but also protect the public. We are not opposed to all forms of expungement. It’s just, what are the details, and what is society getting in terms of encouragement of rehabilitation?

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