Court to decide the bounds of judges' turf

A woman -- we'll call her Alicia -- underestimated the power her criminal record would have in closing doors of opportunity. About eight years ago, Alicia pleaded guilty to welfare fraud. She and her husband continued to take public assistance after they were no longer qualified to receive it. Alicia and her husband paid restitution of about $12,000 and performed community service. In the ensuing years, she earned bachelor and master's degrees. Then, she applied for full-time work.

BCA doesn't disobey court orders.
"If (a judge gives)us a court order that says,'I'm ordering the BCA to seal that record from public view' we do not disobey court orders; we seal them. We may, and have pointed out that it is our opinion and the opinion of our attorneys that the judge doesn't have the authority to do that." BCA Superintendent, Tim O'Malley.
MPR Photo/Elizabeth Stawicki

"One organization that I applied for proceeded with presenting a job offer to me and that was in writing. The last step in the process is to perform a background check," Alicia said.

The background check showed she had a record of felony theft, wrongfully obtaining public assistance. The employer decided against hiring her.

"I really felt like I was doomed and I had this albatross that would follow me for the rest of my life -- regardless of the achievements I had made since the conviction, regardless of any recognition that I got outside of the workplace. It really seemed like I sort of had this sentencing that was far beyond the realm of the courts," she said.

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What the expungement has allowed me to move forward with a clean slate and to allow me to participate fully in the best of my abilities in society.

A criminal record may not only prevent individuals from getting jobs and housing but also credit and educational loans. The courts have a controversial remedy for people like Alicia called expungement. Expungement is a kind of cloaking device for criminal records. The records still exist but they're sealed from the public. Police and court personnel can still access these files. The Department of Justice says about half the states have laws that allow expungements.

The Minnesota Bureau of Criminal Apprehension or BCA keeps its own set of criminal records, which weren't always public or easily accessible in the past. They are now due to the ease of the Internet. The BCA is the primary source for companies that perform background checks on job applicants. On this day, Tricia Malone who works at a Shakopee company, Mr. Handyman checks one applicant's report.

"[T]his is forgery, bringing stolen goods into the state, it was a while ago, almost 20 years ago but it's information we need to have....and we can't employ this person," says Malone.

It's probable that the background check company that Malone used harvested this man's criminal record from the BCA database. The question for the court of appeals is whether judges have the power to step onto the executive branch's turf just long enough to seal an individual's criminal record there.

Former Hennepin County Attorney Bob Johnson
"By continuing to say 'no we want that person's record public,' knowing that it's going to less the likelihood that they're going to get a job and with that will come an increased likelihood that they're going to commit a crime, is that something that makes sense?" Tom Johnson, Council on Crime and Justice and former Hennepin County Attorney.
MPR Photo/Mark Zdechlik

Tim O'Malley, who heads the BCA, says there's never been a better time for the community to debate these issues. He says the BCA doesn't believe judges have the power to seal the BCA's criminal records but he says they won't say no to a judge's directive.

"If they give us a court order that says,'I'm ordering the BCA to seal that record from public view,' we do not disobey court orders; we seal them. We may, and have pointed out, that it is our opinion and the opinion of our attorneys that the judge doesn't have the authority to do that," O'Malley says.

The practice of sealing a person's criminal record is limited. There are some crimes that judges can't ever expunge such as sex offenses for example. Judges have discretion to seal records but typically a person must have gone at least five to seven years without any kind of offense; and they must prove they've been rehabilitated such as getting education degrees or steady employment. The judge must then balance society's need to know this person's criminal record with the person's second chance at finding a better job or place to live.

Supporters of expungement say that if judges can only seal those in the court and not at the BCA, then the expungement statute is meaningless. Tom Johnson of the Council on Crime and Justice says at some point society faces the law of diminishing returns in branding a person a criminal.

"By continuing to say 'no we want that person's record public,' knowing that it's going to less the likelihood that they're going to get a job and with that will come an increased likelihood that they're going to commit a crime, is that something that makes sense? Or, are we at a point in this person's life were we can say, 'no let's allow them to have this behind them,'" Johnson says.

The owner of Mr. Handyman in Shakopee, Stefan Silverman, says he understands second chances. He wishes he could hire people with criminal records who have turned their lives around.

"But when I send them into the customer's home, I can't see them. I don't know where they are other than at the customer's location. I trust that things are going to go well and their training has helped them produce a good job. But I don't know what they're going to do like take something in a room when they're not looking. It's a great concern," Silverman says.

Right now some judges still order BCA records expunged; others won't. It depends on the judge. Alicia's judge agreed to expunge her records in the court system and at the BCA. As a result, Alicia applied for and was offered a professional position at a major company that she accepted. Her employer does not know about her criminal background.

"What the expungement has allowed me to move forward with a clean slate and to allow me to participate fully in the best of my abilities in society. And I think that's an important opportunity that everyone as a citizen ought to have," says Alicia.

The Court of Appeals will rule on the expungement case in the next few months. Legislation that explicitly would have given judges the power to seal BCA records stalled at the Capitol this session.