Law student in lobbying effort to make expungement more meaningful 

Posted: 1:00 am Mon, December 14, 2009
By Michelle Lore

A local law student is leading an effort to get lawmakers to go back to the drawing board on expungement procedures.

Expungement is supposed to provide a chance for a fresh start by allowing criminal records to be wiped clean in some instances. However, a narrow statutory expungement mechanism and limits on the ability of judges to expunge nonjudicial records have combined to create a very messy situation for those in search of a clean slate.

Most criminal records — including those maintained by police departments — are held outside the judicial branch. Sealing judicial records provides little benefit when a potential landlord or employer can easily retrieve an arrest record from a local police department during a background check.

Hamline 3L Carly Melin has been working on an amendment to the expungement law that would give judges the power to remove the scarlet letter from a past mistake without leaving the smudge marks. In 2008, Melin and a fellow law student drafted an amendment to the state’s expungement statute that would give courts clear authority to seal criminal records held by executive branch agencies. They weren’t successful during the 2009 session, but Melin is planning to be back again lobbying for the change in 2010.

“I’m trying to get them to clarify the statute so that courts can start to provide a meaningful remedy for people,” she explained. “Right now there is basically no remedy for people who have criminal records.”

Inherent authority

The two bases for expunging criminal records are Minn. Stat. Sec. 609A and the inherent authority of the court. The statutory procedure is only available in cases in which the underlying proceedings were resolved in favor of the petitioner, so the majority of requests for expungement are brought pursuant to the court’s inherent authority.

Practitioners say caselaw on the issue has been inconsistent.

In 2004, in a decision that came as a surprise to many criminal defense attorneys, the Minnesota Court of Appeals ruled in State v. Schultz that a court’s authority to order expungement does not extend to nonjudicial records such as those maintained by executive agencies like the BCA and police departments.

The landscape changed in February 2008, when the Court of Appeals issued State v. V.A.J., in which it decided that when a District Court orders expungement of a criminal record through its inherent authority, that order includes the judicially created public record maintained by the Bureau of Criminal Apprehension.

However, in September 2008 the Supreme Court ruled in State v. S.L.H. that a District Court judge did not err in declining to exercise inherent authority to expunge the petitioner’s records held outside the judicial branch. Similarly, a decision issued in by the Court of Appeals in July, State v. N.G.K., reversed a District Court judge’s decision to permit the expungement of records possessed by the executive branch.

“There is currently a very disparate application of caselaw from judge to judge and county to county,” said Minneapolis criminal defense attorney Brockton Hunter. “Judges don’t know what to make of all this caselaw.”

Amendment proposed

Efforts to amend the expungement law have been ongoing since the Schultz decision. Those who argue change is needed contend that allowing expungement but limiting its reach so that records remain accessible to the public effectively denies petitioners a meaningful remedy.

“If the court doesn’t have the authority to order the sealing of BCA records, the expungement is essentially meaningless,” Hunter said.

Court of Appeals Judge Gordon Shumaker, who wrote a concurrence in V.A.J., said that the current interpretation of the law puts one who successfully obtains expungement in a predicament.

“On the one hand, he is entitled to say he has no conviction but, on the other hand, the public record shows a conviction. So he appears to be both a criminal and a liar,” he said.

In December 2008, Melin approached Shumaker, who was her evidence professor at the time, about her concerns with the expungement process. Shumaker told her that if she feels strongly about it, then she should do something about it.

She did. Melin and a classmate (who has since graduated) drafted language amending the expungement statute, Minn. Stat. sec. 609A, subd. 5(c), to read as follows: “If the court issues an expungement order under this chapter or under its inherent authority it may require that the criminal record, wherever kept or maintained, be sealed, the existence of the record not be revealed, and the record not be opened except as required under subdivision 7. Records must not be destroyed or returned to the subject of the record.” (The amended language is in italics.)

“It would give courts the explicit authority … to seal conviction records held by the executive branch through expungement,” said Melin.

Melin worked on the proposed amendment with prospective authors in the House and Senate during the 2009 Legislative session. Sen. Mee Moua, DFL-St.Paul, attempted to include the language in a Senate bill that would have made other changes to the statute as well, but the language was removed from the final version. (The bill, S.F. 560, died in the finance committee.)

A second chance

Melin has been meeting with legislators about the proposed amendment in preparation for the upcoming legislative session. She said that the language will likely be similar to last year, although it could end up somewhat “watered down” in order to increase its chance of passing.

She hopes her planned internship with House Majority Leader Tony Sertich, DFL-Chisholm, next semester will help in her quest for the legislation. “I won’t just be working on this, but I’ll have more access to work on it,” she said.

Other groups have been working on the expungement issue as well, including the Minnesota Association of Criminal Defense Lawyers. Supporters of the change don’t expect it to come easily.

“We realize it will be difficult to pass any kind of controversial, criminal justice related legislation in an election year, particularly with a governor who may run for president,” said Hunter, chair of the MACDL’s Legislative Committee. “He’s just not going to allow anything to pass that isn’t pretty mush agreed upon by defense and prosecutors.”

Melin expects it to be an uphill battle as well. “Giving criminals a second chance is always kind of controversial and it’s always hard to get those passed,” she said.

Prosecutors, media oppose broadening expungement

Opposition to expunging criminal records comes from various sources, including some county attorneys.

Stevens County Attorney Charlie Glasrud, president of the Minnesota County Attorneys Association, said that arrest and conviction records are so widely published now that sealing them won’t actually help those seeking jobs or housing. Rather than expunge the records, a better process would be for a judge to issue a certificate of rehabilitation or good conduct and then make it unlawful to discriminate against someone who has such a certificate, he said.

Glasrud told Minnesota that it’s burdensome, and likely e
xpensive, for agencies to locate and seal existing records.

“It’s probably better to recognize that it happened, it’s out there and all vestiges of it can’t be retrieved,” he said. “Instead, in appropriate cases, we should say it happened, but you can’t and you shouldn’t consider it anymore.”

Representatives of the media have opposed changing the law as well.

Mark Anfinson, counsel for the Minnesota Newspaper Association said that the media is concerned over the possibility of inconsistent application of the expungement process by the courts. He also said that the case has not yet been made that expunging criminal records will have the intended effect of actually improving housing and job opportunities.

“People just expect or assume there will be these wonderful benefits,” he said. “But that’s not the best way to make major changes in social or legal policy.”

Some opponents of the proposed amendment, including the media, are also concerned that the courts will begin routinely granting expungement requests — an argument Shumaker doesn’t buy.

Shumaker said that during his 16 years as a District Court judge many expungement requests were made but very few were granted. “They are not necessarily easily granted. … This is for exceptional, extraordinary circumstances,” he said.

Expungement under a court’s inherent authority

Under case law, a District Court judge may expunge a criminal record under its inherent authority only under one of two circumstances:

• to prevent a serious infringement of the petitioner’s constitutional rights; or

• if expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from sealing the record and the burden on the court in issuing, enforcing and monitoring an expungement order.

Such expungements are available only of records in the possession of the judicial branch.

Factors the court should consider when making this determination include:

• the extent that a petitioner has demonstrated 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 that the petitioner poses and how this affects the public’s right to access the records;

• any additional offenses or rehabilitative efforts since the offense; and

• other objective evidence of hardship under the circumstances.