a brief look at criminal records

Emily Baxter

a brief look at criminal recordsThe Council on Crime and JusticeFunding provided by the Emma B. Howe Memorial Foundation of The Minneapolis Foundation

How many people in Minnesota are in prison, jail, on probation or on parole?

A. 1 in 5B. 1 in 18C.1 in 26D.1 in 31POP QUIZ!

How many people were under correctional control in Minnesota in 1982?

A. 1 in 8B. 1 in 28C. 1 in 76D.1 in 98

CORRECTIONAL CONTROL IN THE STATESlisted as they appear, top to bottom: probation, jail, parole, prison

Approximately how many Minnesotans come home from prison each year?

A. 3,000B.7,000C.12,000D.13,000

Minnesota has the _____ highest rate of people under correctional control in the nation

A. 2ndB.8thC.23rdD.48th

MSGC REPORT ON FELONIES

How many people in Minnesota have a criminal record?

A. 1 in 4B.1 in 12C. 1 in 24D.1 in 32

In the mid-2000s, African American males in Minnesota were arrested for drug-related offenses at a rate ______ times higher than White males

A.1B. 10C. 100D. 1000

In Minnesota, African American / Black individuals comprise 35.4% of the incarcerated population and 4.6% of the general population

American Indian individuals comprise 6.8% of the incarcerated population and 1.2% of the general population

Juvenile records are private and are expunged once the youth turns 18.

True or False?

Some juvenile records are destroyed once the youth reaches the age of 28

Some records are public

JUVENILE RECORDS DONT DISAPPEAR

In 2009, how many children in Minnesota between the ages of 10 and 17 were arrested for serious offenses?

A. 110B. 1,100C. 11,000D. 110,000

30.2 percent were arrested for an offense other than a minor traffic violation

Increase in arrests for drug-related offenses, zero-tolerance policies in school, and a more aggressive and punitive justice system

Study published in 2011 Pediatrics journal

ONE THIRD OF US YOUNG ADULTS ARRESTED BY AGE 23

Chart1

30.2

59.8

Youth in America

Sheet1

Youth in Americakey

30.2arrested

59.8not arrested

To resize chart data range, drag lower right corner of range.

Only convictions appear on a criminal background report.

True or False?

Bureau of Criminal Apprehension (BCA) Minnesota Court Information System (MNCIS)Police DepartmentCity AttorneySheriffs DepartmentCounty AttorneyState Attorney General Department of CorrectionsDepartment of Human Services

Private data-minersPrivate theft databasesWHERE RECORDS ARE KEPT

BCAMNCISFBI

Private data miners

*Incomplete and inaccurateWHERE RECORDS ARE KEPT

Levels: FelonyGross MisdemeanorMisdemeanor Petty Misdemeanor

DispositionsArrestDismissalStay of AdjudicationStay of ImpositionStay of ExecutionExecuted SentenceAcquittalWHAT RECORDS SAY

DISPOSITIONArrestDismissal = no probable causeCFD = no plea, no convictionSOA = no convictionSOI = misdemeanorSOE = no prisonExecuted sentence = sit time

Minnesota Statute 245C.15direct care to vulnerable peopleDEPARTMENT OF HUMAN SERVICES

Misdemeanor:

Wrongfully obtaining assistanceFood stamp fraudIssuance of dishonored checksCriminal vehicular homicideFirst through fifth degree assaultsViolation of an Order for ProtectionTheft

SEVEN

Gross misdemeanor:

Same as above, plus:Disorderly houseBurglaryPossession of burglary tools

TEN

Felony:

Same as above, plus:RobberyTerroristic threatsChapter 152Any felony involving drugs or boozeFIFTEEN

Any level: Agg. robbery, Crim sex, First degree arsonFelony level:First or second degree assault, Malicious punishment, NeglectPERMANENT

Preponderance of the evidenceFifteen to thirty days to respond

Few conclusive findings; no traveling set asides

BURDEN

DHS disqualification process separate from court process for expungement

If a client gets a DHS disqualification letter, encourage the client to respond immediately and request a set-asideIf a client fails to respond to a DHS disqualification letter within the time permitted, the client forfeits his or her right to a hearing about the facts underlying the disqualificationA DHS set-aside request can proceed at the same time as a petition for expungement. The client must keep in mind that they are completely separate proceedingsDHS DISQUALIFICATIONS

According to a SHRM study conducted last year, approximately what percentage of employers are conducting criminal history reports on job applicants?

A. 32%B.54%C.78%D.92%BEYOND SANCTIONS

DO YOU CONDUCT CRIMINAL BACKGROUND CHECKS FOR ANY JOB CANDIDATES?*Note: n = 347. Not sure responses were excluded from this analysis. Slide adapted from January 22, 2010 SHRM presentation titled: Background Checking: Conducting Criminal Background Checks

Chart1

0.73

0.19

0.07

Sales

Sheet1

Sales

All job candidates73%

Selected job candidates19%

No, my organization does not conduct this type of background check for any of its job candidates7%


HOW INFLUENTIAL IS/WOULD BE THE DISCOVERY OF EACH OF THE FOLLOWING IN YOUR DECISION TO NOT EXTEND A JOB OFFER?*Note: n=312.

Chart1

0.370.320.260.05

0.030.240.510.22

0.010.060.350.58

00.020.240.74

000.050.95

Not at all influential

Not very influential

Somewhat influential

Very influential

Sheet1

Not at all influentialNot very influentialSomewhat influentialVery influential

Arrest records that did not result in conviction37%32%26%5%

Convicted non-violent misdemeanor (e.g., criminal offense that is less serious than a felony and generally punishable by a fine, a jail term of up to a year, or both.)3%24%51%22%

Convicted violent misdemeanor (e.g., criminal offense that is less serious than a felony and generally punishable by a fine, a jail term of up to a year, or both.)1%6%35%58%

Convicted non-violent felony (e.g., fraud, embezzlement, etc.)0%2%24%74%

Convicted violent felony (e.g., murder, rape, etc.)0%0%5%95%


Arrest Date: 2004/10/01Historical Local ID#:Controlling Agency: MN0271110 MINEAPOLIS PDSTATE ID NUMBER: MN0000000FBI NUMBER: 00000000Count: 1Offense Date:Case Number:Type: MINNESOTA STATUTEStatute: 609.595S3Charge: Criminal Damage to PropertyOther Statute: MN0000000MOC/UOC:Disposition: HELDCourt File:COMMENT: CONTRLD-SUB-STREETCOURT DATE: 2005/01/16 MN00000000 HENNEPIN CO DISTRICT COURTCONFINEMENT AGENCY: PROBATION AGENCY: MN0000000 HENNEPIN CO PROBATION OFFCOURT COUNT: 1CASE NUMBER: 00000000 SENTENCED: 2005/01/16STATUTE: 609.52S2MOC/UOC:CHARGE: Criminal Damage to PropertyDISPOSITION: CONVICTEDPLEA: GuiltySJIS NUM:COURT FILE NUMBER: 00000000CONVICTION LEVEL: MisdemeanorSENTENCE---------------PRONOUNCED SENTENCE: 60DNO SAME/SIMILARPROBATION: 1YIMPOS SENT STYDCONDITIONAL CONFINEMENT:RANDOM TESTINGFINED: $128COMMENT:CUSTODY SUPERVISION-------------------DATE: 2006/01/21AGENCY: MN0000000 HENNEPIN CO DISTRICT COURTCASE NUMBER: 00000000CUSTODY ID NUMBER: 000000CUSTODY ACTION: DISCHARGEDCUSTODY START DATE: CUSTODY EXPIRATION DATE: OTHER: THIS OFFENSE IS DEEMED TO BE A MISDEMEANOR UNDER PROVISIONS OF M.S.A. 609.13.OTHER: ALL CIVIL RIGHTS ARE RESTORED AND FULL CITIZENSHIP WITH FULL RIGHT TO VOTE AND HOLD OFFICE THE SAME AS IF SAID CONVICTION HAD NOT TAKEN PLACE. THIS DOES NOT APPLY TO ANY OTHER CHARGES OF CONVICTIONS FOR WHICH SUBJECT MAY BE INCARCERATED, ON PROBATION, PAROLE OR SUPERVISED RELEASE.Note that Stays of Imposition are included in the BCA report

Arrest Date: 2006/04/29Historical Local ID#:Controlling Agency: MN0271110 MINEAPOLIS PDSTATE ID NUMBER: 00000000FBI NUMBER: 000000Count: 1Offense Date:Case Number:Type: MINNESOTA STATUTEStatute: 609.52Charge: TheftOther Statute:MOC/UOC:Disposition: HELDCourt File:COMMENT:COURT DATE: 2006/05/17CONFINEMENT AGENCY: PROBATION AGENCY:COURT COUNT: 1CASE NUMBER: SENTENCED:STATUTE: 609.52MOC/UOC:CHARGE: Theft DISPOSITION: DISMISSEDPLEA: SJIS NUM:COURT FILE NUMBER: 00000000CONVICTION LEVEL

Have you ever been convicted of an offense?Have you ever been convicted of a felony?Have you ever been arrested?

Are these questions generating useful answers?WHAT ARE EMPLOYERS ASKING?

OBTAINING RECORDS

choose All MNCIS Sites Case Search

Select search by defendant

Make sure to print out this first pageAnd click and print each of the cases

Print out each of these pages

HOW TO GET BCA RECORDSBureau of Criminal Apprehension (BCA):Send a written request Enclose a check or money order for $8.00 made payable to the BCA, and a self-addressed stamped envelope. Response time is approximately two weeks.

REMEDIES + RESPONSES

DHS Appeal

Correction of Records

Return of Arrest Records

Pardon Extraordinary

Statutory Expungement

Inherent Authority Expungement

Juvenile Record ExpungementRemedies/Responses

Arrest but no charge

or

Charge but dismissal prior to a formal finding of probable cause

and

No felony or gross misdemeanor conviction within the ten years prior to the arrest at issue.

Minn. Stat. 299C.11:Return of Records

Available for convictions onlyNo Juvenile Adjudications, Stays of Adjudication, or Petty Misdemeanors

Mandatory waiting periodCrime of Violence: 10 year conviction-free periodAll other crimes: 5 year conviction-free periodWaiting period can be waived by Board of PardonsPardon Extraordinary Minn. Stat. 638.02

Court-ordered sealing of government-held recordsNot destruction of a record

Sealed records may be opened for future investigation and prosecution, and for background checks for law enforcement positions.

Expungement in Minnesota

Juvenile and adult expungements

Two main types of adult expungements: Statutory and Inherent Authority

Two types of juvenile expungements: adjudications of delinquency and petty misdemeanors

Expungements

1. Certain controlled substance offenses.

2. Juveniles prosecuted as adults.

3. Certain criminal proceedings not resulting in conviction. All charges in the case resolved entirely in the petitioners favorStatutory (Minn. Stat. 609A)

Expungement prohibited.Where predatory offense registration is required:Murder, kidnapping, crim sex, etc.

It is unlikely that many traffic, family matters, and open files will be expunged. (Motion to seal records)Statutory Minn. Stat. 609A

Dismissals and acquittalsDismissal of grand jury indictment. State v. K.M.M., 721 N.W.2d 330 (Minn. Ct. App. 2006).Dismissed, separate incidents or charges where petitioner plead guilty to other separate incidents or charges. State v. JRA, 714 N.W.2d 722 (Minn. Ct. App. 2006).Continuances for dismissal. State v. C.P.H. , 707 N.W.2d 699 (Minn. Ct. App. 2006) where no guilty plea was entered.Arrests without charges, where not otherwise eligible for 299C.11.

Never pleading guilty, admitting guilt, or being found guilty.Statutory - Resolved In Favor

Being found guilty or pleading guilty, even if not accepted by the court. 609A.02, Subd. 3; State v. A.C.H., 710 N.W.2d 587 (Minn. Ct. App. 2006).Admissions of guilt as a pre-requisite to diversionary programs & deferred guilty pleas. State v. J.Y.M., 711 N.W.2d 139 (Minn. Ct. App. 2006).Being found not guilty by reason of insanity. 609A.02, Subd. 3Stay of adjudication. State v. Davisson, 624 N.W.2d 292 (Minn. Ct. App. 2001). Alford plea, where the defendant admitted there was sufficient evidence to convict, but maintained innocence. State v. Henkensiefken, 2005 WL 1431913 (Minn. Ct. App. 2005).Not Resolved In Favor

Separation of Powers

The statute allows the judge to order ALL government records

In many cases, inherent authority seals only court recordsRIF vs. non-RIF:Why is this distinction important?

Presumptively granted unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.Statutory - Resolved in Favor

Extraordinary remedy to be granted only upon clear and convincing evidence that it would yield a benefit to petitioner commensurate with the disadvantage to the public and public safety of sealing the record and burdening the court and public authorities on issuing, enforcing, and monitoring an expungement order.

Minn. Stat. 609A.03, subd. 5Statutory - Certain Drugs and JCA

Where constitutional rights have been seriously infringed, or

When expungement will yield a benefit to petitioner commensurate with the disadvantage to the public from the elimination of the record and the burden on the court on issuing, enforcing, and monitoring an expungement order.Inherent Authority Expungement

Indicia used in Inherent Authority balancing test:difficulties in securing employment or housing as a result of the records sought to be expunged; the seriousness and nature of the offense; the potential risk to the publics right to access the records; any additional offenses or rehabilitative efforts since the offense; and other objective evidence of hardship under the circumstances.Inherent Authority Expungement

Current case law is in flux.

Prior to MDT, most cases limited a judges ability to order records sealed at the Bureau of Criminal Apprehension and other executive branch agencies in most cases

In view of the separation of powers, courts proceed cautiously in ordering expungement of records held by the executive branch.

Relief is appropriate when essential to the existence, dignity, and function of a court.

These essential functions include the ability to vindicate a petitioners legal rights and to protect the judiciarys strength and independence.Inherent Authority Expungement

April 9, 2012: The COA found that a district court did not abuse its discretion by ordering the expungement of criminal records that are generated by the judicial branch and maintained by the executive branch.

Here, petitioner sought to expunge the record of an aggravated forgery conviction (Stay of Imposition, successfully completed in 2008).

Denied in 2008; granted in 2011.

Court did not seal non-public BCA records or DHS recordsRecent Appellate Decision - MDT

Minn. Stat. 260B.198 subd. 6 states that the court may expunge an adjudication of delinquency at any time that it deems advisable.

Procedures for juvenile expungement are not defined in the statutes.

Juvenile Expungements

Minnesota Statute 260B.198 allows the court the authority to seal executive branch records

No separation of powers conflict.

Look to Minn. R. Juv. Delinq. 15.05Public safety and best interests of child; allow for personal and social growthNew Court of Appeals Case - JJP

Court recordsBureau of Criminal ApprehensionCounty AttorneyPoliceDepartment of CorrectionsDepartment of Human Services

Private Data Miners

Sample of Databases


Private Data Miners

Statutory - Resolved in Favor


Private Data Miners

Inherent Authority


Private Data Miners

Inherent Authority - MDT


Private Data Miners

Juvenile expungement - JJP


Private Data Miners

Pardon

Even where the order is limited:

Seals some recordsOrder can act as a certificate of rehabilitationSafe Hiring limits employers liabilitySome misdemeanors and petty misdemeanors are not reported to the BCACan ask BCA to include note in record that court records were expungedStill good reasons to seek expungement

RELEVANT LAWS

Fair Credit Reporting Act

Civil Rights ActTITLE VII AND FCRA

Must obtain permissionMust provide pre-adverse action notice with a copy of the report!Must provide consumer reporting agencys contact informationFCRA THE PROCESS

Cannot use arrest records alone

Cannot use blanket bans

Must engage the recordIncludes consideration of nature and severity, time since offense, relationship to job, and rehabilitationCIVIL RIGHTS ACT THE SUBSTANCE

SPEAKING TO EMPLOYERS

Advocate for your particular clientUnderstand the offense and be able to address concerns.Focus on rehabilitationINDIVIDUALIZED ASSESSMENT

Skills and Qualifications Position-specific readinessLoyalty Johns Hopkins StudyWork EthicDiversityWork Opportunity Tax Credit & BondingCommunity Need

BENEFITS

Increase your business income

Save on costs of recruiting, hiring, and trainingSAVE MONEY / SAVE TIME

LawHelpMN.org

Volunteer Lawyers Network: (612) 752-6677 (client intake line)

Legal Aid Services available throughout Minnesota: lawhelpmn.org & mnlegalservices.org

Council on Crime and Justice: (612) 353-3024; crimeandjustice.orgRESOURCES

Emily BaxterCouncil on Crime and Justice

[email protected]?NOTE: The content of this document is intended for general educational purposes only, and is not legal advice. It is not exhaustive or specific. Those seeking legal advice should contact an attorney.

****************Can get that taken care of now.**

Documents

a brief look at criminal records