The Right Focus on... Crime, Justice and Second Chances
Sentenced For Life?
Should an arrest or conviction remain on one’s record for years? Decades? This program examines the debate over the need to help ex-offenders rejoin society and the requirements of public safety.
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David Brown is a Senior Assistant Hennepin County Attorney. He has been a prosecutor for over 20 years, and for the last several years, he has represented the county attorney's office at the Legislature and has worked on legislation involving expungement and reentry issues.
Mark Haase is a Director of Public Policy and Advocacy for the Council on Crime and Justice, a nonprofit group that addresses the causes and consequences of crime and violence through research and advocacy.
Rep. John Lesch is a member of the Minnesota House of Representatives and a prosecuting attorney for the city of St. Paul. His district, 66A, includes portions of St. Paul.
Christopher Uggen is a distinguished McKnight professor and chair of sociology at the University of Minnesota. He studies crime, law, and especially how former prisoners manage to put their lives back together.
Edited Transcript of Show
Introductory Comments — Rondah Kinchlow: I'm Rondah Kinchlow, and today we're going to focus on the need to help ex-offenders rejoin society and become productive citizens while ensuring that society is protected from those who might re-offend and do harm. It is a topic that affects the lives of more people than you might imagine. In Minnesota right now, about 1 out of every 26 adults is either in prison, on parole, on probation, or under some form of supervision by the Department of Corrections. In fact, out of 50 states and the District of Columbia, Minnesota has the fourth highest percentage of adults under correctional control.
If that sounds alarming, there is perhaps some good news. Minnesota puts fewer people in prison as a percentage of its population than any other state except Maine. That's because we use parole and probation more than almost any other state. But unfortunately, for those who end up on probation, the long-term consequences 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 more and more landlords screen out applicants with a criminal history.
Then there's the loss of basic civil rights, including the right to vote. This has consequences not only for individuals but for whole communities, especially communities of color. For a person of color, the odds of going to jail or otherwise being under correctional supervision are far greater than for a white person. As a result, African-Americans in particular are disproportionately disenfranchised. About 10% of Minnesota's African-Americans have lost the right to vote through our state's felon voting ban.
In the last state legislative session, a series of bills was introduced designed to make it easier for those who have been arrested or convicted of crimes to have a second chance. We're going to talk about those proposals and the prospects for reform next session with our panel of experts, which includes one of the lawmakers who sponsored some of that legislation.
What are the obstacles facing someone with an arrest or conviction record in Minnesota, and how much should an employer or landlord have a right to know about an arrest or conviction in a person's past? When should an ex-offender's record be expunged? We're here to ask those questions and more with a panel of experts.
Kinchlow: The topic tonight is expungements, and a lot of times, for those people who don't have to deal with this issue, we don't really realize how big an issue it is. Where do you come down on this issue, Mark?
Haase: At the Council, we hold classes for people with criminal records. So we see anywhere from 20 to 40 individuals a month who come to our classes because they have a criminal record, and they can't get housing; they can't get employment. And their crimes and how old they are really varies, but we also have people that call us asking for help. Often, these folks have very old crimes; sometimes not what you would think would be a serious crime. Sometimes, for example, they may have a petty misdemeanor that's technically not even supposed to be considered a crime in Minnesota, but it's still keeping them from getting employment. And where the Council comes down on this sort of position-wise is that everybody should have an opportunity through some means to get beyond the barriers created by their criminal record in an appropriate manner.
Kinchlow: And I wonder if getting beyond it means changing the law or changing attitudes. What do you think, Chris?
Uggen: I think both are going to be really important. What's really changed, the real action here, has been in the access to the information so that even if the laws remain the same, where employers or media can get access to a criminal record, today it's so much quicker, so much easier, just a few keystrokes. We just did a study at the University in partnership with the Council where we found two-thirds of Minnesota employers were routinely checking backgrounds, and this is for minimum-wage-type jobs. And two-thirds of those were all using private search firms, and so that's what's changed. Instead of going down to the courthouse and having to know somebody's date of birth, social security number, etc., that would require a lot of burden—you'd have to be really interested to want to do that—now it is really public, and not just felony convictions but arrest records, the lowest—just simply the lowest level of contact with criminal justice that might happen to you at 18 and haunt you when you're 48.
Kinchlow: What do you think about this, Representative? Do you think that this is one of those issues that, together, legislators are going to look at and at least agree that something needs to happen? What do you hear?
Lesch: Chris mentioned a little bit about how things are fundamentally changing because of the technology of this, which is true. As legislators—and I'm chair of the Committee on Crime, Victims, and Criminal Records, which is ironic, considering those are the two things we're trying to balance here in consideration for who has a right to know about these convictions. Remember, this is government data. It's governed by government data practices, and people have a right to know the information that the government has on you and other individuals as well. But remember, when we try to enact legislation now, it's going to be different in five years. We've heard of places like Target Corporation that are amassing their own stockpile of nongovernment data on individuals. No matter how many laws that we pass about government data, it's not going to affect what Target Corporation does. Up there in Brooklyn Center, they have their own crime lab, their own analyses, their own everything. That's going to change the tenor of the debate as well five, ten years from now.
Brown: From a prosecutor's perspective, it gets less and less beneficial to try and expunge or seal—hide records—than it is to maybe start talking about, what should employers or housing people be doing with that information? Because even though on the government level, you might try to seal it up—the judge tells everybody, "BCA, you have to seal it; prosecutors, you have to seal it; police department, you have to seal it." Target Corporation or the private data mining firms already know it. And from our perspective, expungement becomes very expensive for the government agencies having to hide these records and maybe not as effective in doing what we want to do, which is make sure that people can be safely employed and get housing and balance the rights of them to get their housing and employment and the needs of people providing the employment and housing to legitimately protect their customers.
Kinchlow: I'm wondering if there are certain crimes that we should treat differently, when it comes to expungement, than other crimes. And do you have to have been convicted in order for that to follow you?
Haase: Currently, crimes for which you had to register as a predatory offender cannot be expunged in Minnesota, and that's been the law for quite a while. There's definitely some sense to that. But then going back to the part about non-conviction records, yes, you could have been charged with something -- the witness misidentified you, later recanted and said that it wasn't you. You still have a record both at the police department and at the courts.
Kinchlow: So that (arrest) doesn't automatically go off your record?
Haase: It does not. And imagine if you're somebody who maybe has a threatening demeanor, who gets a rape charge, but then DNA evidence comes back. We had somebody in this case, had an older record, was pulled somewhere else on a rape charge, and then had to go file for expungement, had to go all the way up to St. Cloud from Minneapolis to do it. And there were problems with that. He had to do it again. Then there's the different treatment for different types of occupations. Is the person applying for (a job) working with children, working in the schools, working as a taxi driver versus somebody getting a job in a factory or warehouse? Those should be treated completely differently. The problem right now is that, especially on the private employer, landlord level, they aren't making those discriminations. If you have any kind of record, it's just easier for them to get rid of that.
Kinchlow: I wonder if the answer is getting lawmakers to say it's against the law to put it on an application or it's against the law to ask this particular question on the application.
Lesch: We did pass Ban the Box this past year, which was a big plus for public employers—you got to be able to get the interview, at least get past the application, and after that, we'll consider your record, I think, which was a big plus. But I want to add one other thing as to what Mark was talking about. There may be some concerns that people have about why would we release information about a person being charged when they haven't been convicted? It seems unfair. This is a basic principle of jurisprudence as old as the Magna Carta. We can't hold you in jail without publicly stating what we're charging you with. It's undemocratic, it's unconstitutional, and you have a right to know publicly what the government has to say about the charges against you. So once we start to step in and say, "Well, we're going to mask some of these things," we begin to interfere with basic principles of democracy and jurisprudence we have to watch out for. It's a minefield.
Kinchlow: Chris, what were you going to say about that?
Uggen: I'd say that conviction versus arrest is a big issue, and that's a variable that we have to think about, as well as the felony versus misdemeanor versus traffic level issue. So we've got severity of crime and then progress through the system. And then finally, I want to introduce the idea of time to this, that the dimension that something that happened at 18, how long does that persist on a record? There's a lot of research emerging in criminology now that's saying that after you've been out seven years or ten years, the likelihood of re-offense for somebody who was convicted that long ago is about the same as the general population. So there's no net gain to public safety by making those data available. I use the parallel sometimes with our health records—people will say, "Well, the genie's out of the bottle with criminal records. It's too hard to control." But as a researcher, I know that if I need access to somebody's health records, that is a big bureaucratic maze to get, and there are many protections in place for private citizens. There are some models at least that we can think about having a conversation about which records are out there.
Another part of it is education and greater sophistication in reading and understanding records. One of the studies that I was involved with found that employers who hired people of color were better able to distinguish a very low-level arrest record, and to not disqualify somebody on that basis. Probably they are encountering a lot of applicants with low-level records, and are able to say, "Oh, this is disorderly conduct. It was an arrest that never went anywhere." So employers, I think, are getting a bit more sophisticated in reading these. But right now, there is this knee-jerk (reaction)—I mean, one of the quotes we had from an employer was that "everybody deserves a second chance, just not here."
Brown: For somebody charged with a low-level theft by swindle, that may not be a disqualification to go work at McDonald's. To put that person in an elderly person's home with access to their belongings, to their checkbooks, to some other things, that's where you see this issue become difficult. For certain jobs, we might not care about that conviction; whereas, for other jobs, we do.
Kinchlow: Would you be in favor of a time limit on how long we care?
Brown: Yes. I think the County Attorneys Association has talked about, for felonies particularly, something in the neighborhood of a ten-year time limit. And if we could be convinced by research that that number is different, we'd certainly be willing to look at it. But that's with no new offenses in between. Yes, I think there's a time period. For a gross misdemeanor, a lesser period, five years. For a misdemeanor, maybe it should be even shorter. But we've actually talked about that and supported that.
Lesch: I actually had two expungement hearings this morning in court, ironically, in my prosecutor capacity. One was a situation where a young man got drunk at a party at a local college, got in a fight with a security guard, and the disorderly conduct and the assault were dismissed -- ironically, by me three years ago -- and he got underage consumption. But the company he was applying to declined employment for him on the basis of the charges that had been dismissed. He went to have those charges expunged, which I didn't object to. The underage consumption remained on his record. The next individual had a domestic assault, which ended up being a disorderly conduct after the fact, but he had also compiled other crimes in the interim, between then and now.That causes additional problems, and so we did oppose it and object to that. These are people applying, Rondah, for private employment. With government jobs, it is an entirely different matter. We can get our fingers on that a little bit better, whether it's a felony or a misdemeanor.
I'll give one example of a constituent that I helped out two years ago who worked as what David was talking about, an in-home health care aid. She had been working under a waiver due to a second-degree assault which had occurred when she was 18 years old. She got in a fight with a friend of hers over a boy, took out a steak knife, and swung it at her. Nothing happened. She maybe didn't have a good lawyer, but she got felony assault on it. But there was a stay of imposition of sentence, meaning it became a gross misdemeanor after a certain number of years if she got no further convictions or any problems. However, she was disqualified under new legislation, Tim Pawlenty's 2005 legislation, that precluded her from even pursuing a waiver for that. So she was out of a job. We tweaked that, allowed her back in under the guise that it was no longer a felony; it was a gross misdemeanor. But there was still a strong push from the governor to say, "No, no, none of these people should be allowed in the system." We have a better ability to change that as the government. Private employers, though, like what Chris was talking about, it gets really hairy when you start to step in and say, "You know what? You can't consider misdemeanors," or, "You can only consider felonies." They balk at that pretty loudly.
Kinchlow: How do you respond to those who would ask, "Why do we care in the first place?" If you're not the one who committed the murder, the one who committed the aggravated burglary, the one who committed the theft by swindle, why do we care about them cleaning up their record when they really did an offense against society?
Uggen: I think part of it is the scale that we're talking about here. As a society, we tend to think, "Well, there's two kinds of people in the world --there's the bad guys, and then there's the rest of us." And all the research points to a really strong relationship between age and crime. That is from 14 to 20, you are in a high crime area, and former delinquents and criminals become taxpayers and become citizens. So there is a natural progression there. I tried to do some demographic estimates on this, finding there's about 14 million former felons in the United States, and we need their productive capacity. We need them paying taxes. And we certainly don't want to be paying to house them in Stillwater.
Haase: I'd like to go back to your earlier question—can we do this through policy, or do we have to do it through attitude change or private party behavior change? I think the answer is both, and the Ban the Box legislation is a good example—the point there being that by a simple change in practice. Now you have to go look at the applications, absent the criminal record information. Who's qualified? Who has a good résumé? Then you get them in the door, so they can say, "Yeah, I do have this criminal record from ten years ago, but this is what happened, and this is what I've done since." That's a great example of the government helping employers develop some practices where they can still see the record; they can still have some discretion. But it just changes the whole framework. Another good example is another piece of legislation that was passed this last session, authored by Senator Mee Moua and Representative Champion, the Safe Hiring Law. This limits employer liability for hiring somebody with a criminal record in certain cases. For example, if it's a job where it doesn't put anybody at any additional risk by hiring this person compared to the risk that would be posed by him being released anyway, the evidence of that record can't be admitted in a lawsuit against the employer.
Brown: That's a direction, certainly, that we've worked with Mark and the Council on Crime and Justice to move towards—maybe some incentives or protections for employers and housing folks, because of course, they're worried about getting sued. If I let a person live in this apartment building who is a known drug user or has been arrested ten times for drug use and it turns out they have a meth lab and blow it up and hurt people, am I going to get sued? Can we find some ways to give them both protection and some incentive to allow those folks, particularly where it was just an arrest, never resulted in a conviction?
Kinchlow: Let's talk about the right to vote. If you've had your record expunged, does that mean that you now have your right back to vote?
Uggen: There are about five million Americans right now who can't vote because of a felony conviction, and laws vary from state to state. It's a real patchwork quilt where places like Maine and Vermont, you can vote even while you're incarcerated, even in prison. And then there's a number of states where you can't vote indefinitely, even after you've served any prison sentence, any parole, any probation, and you're off paper. But then you are still disenfranchised. Minnesota is between there, where you may not vote while you're on paper, which means you're in prison, you're on probation or parole. This still affects a great number of people in our community. About 10 percent of the African-American voting age population is disenfranchised because of a felony conviction, and it's far greater than those of other races.
Kinchlow: That's a huge number.
Uggen: That's right. And it's partly because we've had this growth of community corrections where there are 2 million people incarcerated. But there are 7 million people under correctional supervision in the United States right now, and those laws vary quite a bit. In states like Florida, which recently has changed their regime, there were over a million felons who were disenfranchised in 2000 during that time.
Haase: Often, Minnesota is cited as having one of the lowest prison populations in the country, and that's true. But just earlier this year, the Pew Center on the States came out with a report that shows that when you look at the number of Minnesotans per capita under correctional supervision, which means on probation or parole or in prison or jail, we have the eighth highest numbers in the country. And that's because, under the sentencing guidelines and other things we've done, we don't use incarceration as much, but we've been pretty liberal in our use of probation and parole. When it comes to both felony disenfranchisement, that has a huge impact there, because like Chris said, you can't vote while you're on probation or parole. It really doesn't matter whether you went to jail or prison or not—once you have that conviction on your record, the consequences are the same. So it is a huge issue for Minnesota.
Kinchlow: What about the applicant? Do you ever hear them saying, "I paid my debt to society, and I applied for an apartment to try and start over again. And now I've heard from a landlord who said, 'here's the reason why you didn't get the apartment. It had nothing to do with your income. It had to do with your criminal past.'"
Brown: Oh, sure. Our office gets a number of expungement petitions each year. Now, understand that our office is dealing with people, largely, who have been convicted of felonies. So that's a little trickier issue. But even people convicted of low-level felonies, we've had it where they've been put on diversion, where they came through on a felony level but relatively low-level property crime years ago, and now that's eliminating them from housing, and they'll make a motion for expungement. In fact, I would say that about 95% of our expungement requests are for two things: a job or housing.
Lesch: We need to decide what the priorities are for our community and for our state as well. I know some folks—defense attorney friends of mine—might not like to hear this, but the burden is very, very high to get a conviction in the United States of America. The deck is stacked against the state, against the prosecution. I need to get a unanimous jury of either 6 or 12 people to agree on the result. I have the burden of proof, and the burden of proof is very high. It's beyond a reasonable doubt. The result of the high number of convictions has been because of our policing efforts.
Usually, over half of a municipality's or local government's jurisdiction budget is spent on public safety and police. And it's down to a science where we're going to get you in some way. Think of DWI or some of these other assaultive crimes and maybe property crimes and maybe crimes against persons. What we need to decide as a community is whether that's still a priority for us to secure that many convictions. If it's not, then it should be dealt with probably in the policing sector, if we're going to unfund the police departments, if we don't want that many patrols coming around, because what happens, as has been discussed, is, police, because of their funding levels right now, end up simply responding to calls. It's not a proactive policing effort. And where do they respond to the calls? They respond to the calls in high-call areas. That's where they congregate, and so guess who gets picked up because the person was driving with a taillight that was out or for some other reason?
That's really the area and the direction, I think, that needs to be dealt with. If we're going to continue pursuing individuals who bear the brunt of the highest number of convictions, it's going to come down to how we fund public safety. I happen to think that it is important to maintain that, but the collateral sanctions component of it is something that we've only recently had to deal with, and hence, people like the professor and other folks at this table know that it means something very different than it did when you burned someone's garage or machine shed down. Everyone in town knew it, and there was no real need for a conviction on the record, 'cause it was a small town. It's a very different field we're playing on right now.
Haase: Under current expungement law in Minnesota, for somebody with any conviction, to have that expunged at the Bureau of Criminal Apprehension is difficult. But let me give you one example that sort of brings a couple other issues in here, not to muddy the waters too much. We received information from somebody who, as a juvenile, was adjudicated delinquent of burglary because she stole a bike out of somebody's open garage. When you look at the elements of the crime, that's burglary. And now, under the Department of Human Services Background Studies Act that prohibits somebody from ever getting a job in certain areas like nursing—this young woman can never become a nurse. That's the only offense on her record. But because the Department of Human Services can access that juvenile record and because of what the law says on that, there's no set-aside; we're stopping somebody who could be a great nurse because of this juvenile mistake. The juvenile records issue is something the Council is looking at working on this coming legislative session, because if we want to really have a system that allows juveniles to rehabilitate, that's not happening in many cases right now.
Kinchlow: How responsive have legislators been to this whole issue? Do you think that in the next assembly that we'll pass something that really makes a huge difference in terms of expungements?
Brown: I think the Legislature has been very responsive. Representative Lesch has taken a leadership role. I know Senator Moua has taken a leadership role. Representative Champion has taken on a number of these issues. So I think there's real interest out there in balancing these different interests. I think we are going to make progress. We came real close this last session. Rondah, you may know that a lot of the prosecutions we have, we'll give somebody what's called diversion, where they come into court, they agree that they will defer their case for a year, and if they don't have any more criminal conduct, it'll get dismissed.
Kinchlow: And what kind of crime would we be talking about?
Brown: We're talking about low-level property offenses, about low-level drug offenses in some cases. But this is a diversion where it just goes outside of the criminal justice system. We continue the whole thing for a year or two, and then it goes away. Some of the legislation we were working on is where the prosecutor is willing to agree to do that, letting the victim know up front, "We might be willing to expunge this, and if you have a problem with that, you need to let us know." And once that happens, then at the time we do the diversion, we say, "If they successfully complete, we'll expunge this record. It can be automatically expunged," which would save us a great deal of time coming back to the court to do that and save them the hassle of having to come back to do that. I think that's an area where you have the prosecution agreement to it and the chance for victim input if there are victims—that strikes a nice balance.
Kinchlow: I heard someone say earlier that there are some places that have their own database of information about each of us. So you've agreed that, all is forgiven, so to speak. But it's still in the record somewhere, with that private company.
Lesch: From the legislative perspective, I think we're going to look at this in a couple ways. Number one, it's really important to note that, as you brought up, it's just changing so quickly that for the Legislature to sit down, address something en masse, and put it in a straightjacket—the situation's going to be different two years from now, five years from now, ten years from now. So as a legislator, I'm going to be saying, "Okay, is this something that's really going to work in the future?" And number two, you're absolutely right. (With) Target Corporation, for example, how can we pass legislation saying, "You can't keep records of people who were stealing from your own stores, in order to ensure that you're going to keep them out of your other stores." It's probably going to be really difficult to say that, because it's a privately held company. They can police their own properties the way they want to.
there a proposal to bring forth something to your potential employer
to say, "I've been good"?
Haase: It actually is called a certificate, sometimes a certificate of rehabilitation, certificate of good conduct. Some states have these. This last session, Senator Moua introduced what was called a certificate of good conduct. I think Senator Higgins did the session before.
Kinchlow: And is that the one that would release me as an employer from having any legal liability if you—
Haase: Yes, the concept is that you go through a process similar to expungement, go to a court or, in some states, some other agency, and they sort of certify you as being "rehabilitated." You've had a clean record, you've had stable employment. And then they give you the certification, and the certification also says that an employer who hires this person is not liable in any way... Another important part of that is that on some of these disqualifications we've talked about earlier that are state sanctions, like the Department of Human Services licensing, that type of certificate can remove those barriers. What I would like to see, because I think the removal might be politically difficult, is to create a presumption of rehabilitation for those DHS licensing, those collateral sanctions. What I would like to see, ultimately, is a system where a criminal record can be treated in a number of different ways, whether it's sort of an automatic type of expungement for a diversion or a non-charge that has some review and then can be automatically expunged, an expungement for lower-level offenses. Then when you get into some of the more serious crimes, maybe a certificate of rehabilitation is the answer, where it's still out there, employers can see it and act on it as they want, but they also have some assurance that it's not going to come back to bite them, and the person has what I like to call a road to restoration. Everybody should have some kind of pathway to being restored. And just a little bit of a editorial here: one thing we haven't talked about very much is public safety, and the assumption that we're going to be safer by making all these records available. In reality, when we have this huge population of people that can't move beyond their record, the likelihood of them re-offending is greater. Then, in the end, we're not going to be safer if they can't get jobs and housing.
Uggen: The research is clearly in line with that, that having a stable job and a stable place to live make a huge difference in reducing recidivism and increasing public safety. I'd say also on the voting issue that looking to states in which they allow probationers and parolees to vote, those who are voting have lower levels of recidivism. They're more likely to successfully complete probation and parole. It's a simple concept of insider and outsider. We apprehend people, we label them outsiders, we push them out, and then after awhile, we've got to do something to try to bring them back in. It's in our interest to turn them into taxpayers.
Kinchlow: What do you hear from other lawmakers that's keeping them from jumping on board with this?
Lesch: Most of the bills that have come through to my committee have had something to do with the housing component, because that seems to be the easiest direction to go. Most people think it's mostly unjust if you're denied a place to live. Employment might be another matter. However, there are different components to that. Minnesota Multi Housing Association obviously wants it landlords to have all the information to which they're entitled before they rent their home out or their bedroom out to just anyone.
Kinchlow: But once they find out that they're not going to be held liable legally, does that make a difference to them?
Lesch: Absolutely, I think it makes a difference to a certain extent for a certain number of people. There are those who don't really know what it means when you have an old stay of imposition of sentence on a third-degree assault. "I don't know what that means, but it looks bad, and I'm probably going to be liable." Remember, we can pass all the legislation up there at the Capitol until we're blue in the face. If people aren't made aware that this is what's going on, they're not liable. It's not going to change a thing for the average person on the street who's trying to get a job. And it depends on what we're talking about. I mean a far-reaching, comprehensive expungement type of bill next session—I don't see that.
Kinchlow: What's the hurdle?
Lesch: The hurdle is the nervousness, the natural nervousness of legislators saying, "Wait a second; why are we masking what is public information? The government is collecting this. Why are we going to turn a government into a secret repository of information on its citizens?" That just does not sound democratic, and it makes people naturally nervous.
Uggen: My philosophy is a little different. I would like to get the garbage, low-level cases out of the system. Let's stop creating records in the first place, and part of that means a fundamental shift away from treating things as criminal justice problems and treating them more as community problems, neighborhood problems. I'm thinking here about arrests where we're using law enforcement to try to, say, clear a corner. We can handle that in some other way where we're not creating the kind of black mark that's going to appear on somebody's record 30 or 40 years down the line. One of the key factors in getting a job is being able to make contact with an employer and make yourself a person, as opposed to a record. That record, in all likelihood, represents the worst moment in that person's life. And if we all think about the worst moments that we've ever had, that's horrible to think that that's how people are going to see you. I feel really pleased with the direction the Legislature has gone in Ban the Box, where we're bringing in the records at the interview stage, where that has gone from being a faceless name on a piece of paper to being a person in a room who has a whole history and an ability and a set of skills that might be valuable to the employer.
Brown: I am also hopeful that we'll see some progress on how we handle arrest records that don't result in conviction or even a criminal prosecution where it gets a diversion and doesn't result in a conviction. I'm real hopeful that we can make some progress there.
Kinchlow: Would that include cases that are dismissed?
Brown: Certainly cases where the prosecutors continue something for dismissal. It's like a diversion. We agree to let the case go for a couple years. That's one thing. On the other hand, we have cases where, as we get close to the day of trial, the victim's not available. We have to dismiss the case but have every intention of recharging it, or it's a serious enough case where we want to do that. Or it's a domestic assault where it may have some other issues or may come back. Those require a little more thought before we deal with those records.
Kinchlow: Your thoughts in terms of reform. Are we going in the right direction, and are we moving fast enough?
Haase: No, we're not moving fast enough. However, the legislation that was passed this last year was a great step forward, and I do think that we're getting a lot more attention from legislators on the issue. We're getting a lot more public support over the last couple of years. We've had a coalition of community organizations started called the Second Chance Coalition. Currently, we're at about 27 different nonprofit organizations that have joined together to do grassroots lobbying, to bring people affected by the issue, to the Capitol. And that movement is growing and growing, and so we're getting some more strength in numbers there. Policy is what got us where we are today. When you look at the increasing criminalization of our communities—the licensing restrictions, the background checks—that's why we're here today. I think we have to at least in part look to policy to roll back some of this stuff that just doesn't make sense, and doesn't make our community safer.
Kinchlow: I want to thank all of you for being here. Your final thoughts as we move towards the end of the program.
Lesch: The current law for a person to be able to expunge a criminal record, there are two considerations. First, if the person's constitutional rights were abrogated throughout the course of—or because of—the conviction. And second, an expungement could be granted by a judge if the public safety interests are commensurate with the interests of that individual in having the record expunged. In many cases, an individual wants to be able to get a job, which is a noble thing. You want people to get jobs. At the same time, there is a public safety interest. There are victim's interests. And it's very important to try to remember this throughout. Certainly it's easy to be dismissive of employers' concerns of liability, and that's something that can be dealt with through legislation, and has been so far. But I think that it's very important to remember why we have public records in the first place, and what they're to be used for. If we become the victims of our own technology, how do we deal with that going forward?
Uggen: I'd say, as a researcher, that the goal is really to encourage these conversations. And what I'm hearing now on these issues, that I wasn't hearing ten years ago, is much more realism, much more pragmatism, and much more talking across the aisle—as opposed to you having pie-in-the-sky researchers saying, "Well, close all the prisons," without any regard to public safety. I don't hear that anymore. And I certainly don't hear people completely denying or having a knee-jerk punitive attitude that, "No, we'll lock 'em up forever, and we'll just keep 'em there." Those sorts of things have gone away, and so now we're dealing with the hard part, right? We've got to figure out, well, how do we proceed. What's the best way to protect public safety, but also to ensure justice and some sort of balance between the rights of private citizens, the rights of employers, the rights of the state?
Brown: Rondah, you talked about
the complexity of the issue, and it is really complex. What I've been
hearing at the Legislature over the last couple of years that encourages
me is the civility of the discussion. I mean, these are difficult, difficult
issues, rights of employers and the public and the need for public safety.
What's impressed me is that we have lots of divergent viewpoints on this,
but people are able to work together and to have those hard public policy
discussions, and I think that gives me hope that we will be able to balance
Haase: What I would add is that we often talk about these issues in somewhat of a vacuum, whether it's at the Legislature or here, without people at the table who actually are impacted directly by this and their children and families. And I would just ask, if you don't know somebody who has had a criminal record and is trying to get on with their lives, think about if your child or your brother or spouse had a run-in with the law, maybe did something pretty bad. Would you want them to be able to somehow move beyond that eventually? And then we ask, policy-wise, balancing the competing interests—how can we do that? Another question is, are we really a society that believes in ultimate forgiveness and restoration of people, in second chances?
Kinchlow: Thank you, all. Thanks to all of you for being here. I have enjoyed this discussion. Thanks to you for watching this evening, and we'll see you next time.