Getting a Clean Slate

Expungement or Pardon for criminal offenses

Jeff Burns (not his real name) is a reputable engineer. He is married and lives with his wife and three children in their comfortable home in the suburbs. Things for Jeff were not always so nice.

When Jeff was 21 years old, he was arrested for stealing money from his employer to finance his then out of control drug habit. In court, an agreement was reached to temporarily stay the court proceedings. In essence, Jeff was given another chance. He was placed on probation for a period of two years conditioned on his repayment of the money he had stolen and further conditioned on remaining law abiding. Well, Jeff cleaned up his act, attending treatment and repaying the money.

Now, seven years later, Jeff is applying for a position in management. His employer wants him to sign a routine approval to obtain his criminal record. Jeff knows that if his employer learns about the theft, he won't get the job. What can he do?

One answer may be an expungement. This is often referred to as sealing a record or an expunction. Minnesota allows all records relating to an arrest, indictment or information, trial, or verdict to be sealed so that they are inaccessible except by a court order. Expungements are available in only a limited number of situations. There are statutory expungements and judicial expungements.

Statutory Expungement

A statutory expungement is on that is governed by Minnesota statutes. Under Minnesota Statutes Section 609A, an expungement may be available for certain controlled substance offenses, juveniles prosecuted as adults, or criminal proceedings not resulting in a conviction. In other words, if a person is part of a diversion program (common for theft or drug offenses) that results in a dismissal at the end of the program, they may seek a statutory expungement.

In Jeff's case, prosecution was stayed conditioned on repayment of the money he took and that he remain law abiding. Jeff qualified for an expungement when he completed the conditions of his probation. A petition was filed to seal all arrest records prior to Jeff's job interview. By the time his job application was processed, his criminal records were sealed. Jeff received the management position.

Judicial Expungement

A second type of expungement is the judicial expungement. This is an expungement that may be granted in the discretion of the sentencing Judge if the Judge finds:

1. that an offender's constitutional rights may be seriously infringed by not expunging the record; and

2. when the expungement will yield a benefit to the offender commensurate with the disadvantages to the public from the elimination of the record.

Some of the factors that the court considers include:

• the nature of the offense;

• the amount of time that has passed since the offense occurred without any further infractions;

• the importance of the expungement (like joining the military or obtaining a job).

What records may be expunged by a Judicial expungement has been a see-saw battle and the matter, though decided, could still face future challenges.  Up until February, 2008, a judicial expungement would only expunge judicial or court records. Administrative records, such as those maintained by the Minnesota Bureau of Criminal Apprehension, could not be expunged. This was critical since most background checks are conducted through the centralized database maintained by the Bureau of Criminal Apprehension.

This changed briefly  on February 12, 2008, when the Minnesota Court of Appeals decided State v. V.A.J, 744 N.W.2d 674. In that case, the court determined that the court does, in fact, have the inherent authority to expunge court records and any records of its agents which includes records maintained by the Minnesota Bureau of Criminal Apprehension (BCA).

Unfortunately, the Minnesota State Supreme Court stepped in and in September  the Court ruled in State v. S.L.H. that district courts do not have the authority to seal criminal records beyond the courts themselves — a decision that may be bad for defendants.

The case began in 1992, when a defendant identified as S.L.H. pleaded guilty to fifth-degree felony possession of cocaine in Robbinsdale. She was 20. After three years, the charge was dropped to a misdemeanor. In 2000, a petition for expungement, or sealing, of her record, was filed, but the district court denied the request.

She tried again in 2006 arguing that she was a single pmother with four children and that the expungement was necessary to allow her to find employment and support her children.

Hennepin County District Court stated it did not have the authority to order nonjudicial records sealed. Both the Court of Appeals and , in September, 2008, the state's Supreme Court agreed.

The decision affirming the lower court rulings leaves some room for interpretation.  The Supreme Court indicated that expunging records to grant the defendant employment opportunities is not "essential" to the function of the court.  That implies that there may be some instances where  expungement is essential to the function of the court.

In other words, there may be circumstances where all records judiciual and executive may be expunged.  As a result, person's considering expungements should proceeed forward and should not be dissauaded by the latest  decision.  The law may change again, either judiciall or through legislative action, where having an order expunging records may make the process of sealing or eliminating all records much easier.

Pardon Extraordinaire

Even if an expungement is not available, a person convicted of a criminal offense may consider other options including reopening the criminal case or a petition for a pardon extraordinary.

A pardon extraordinary is a form of relief created by Minnesota statutes which has the effect of setting aside and nullifying a conviction. If granted by the Board of Pardons, the applicant is no longer required to report the conviction except in very limited circumstances (such as applying for a position in law enforcement)

To qualify for a pardon the applicant may not apply for ten years after any crime that is considered a crime of violence or five years after any non-violent crime. The Board of Pardons consists of three member, the state governor, attorney general and the chief justice of the supreme court. The Board of Pardons meets twice a year to review pardon applications

In 2002, the Board of pardons sent our 119 applications for pardons extraordinary in response to requests. However, very few of those applications were completed and returned. In 2002, Minnesota’s Board of Pardons granted twelve such petitions for offenses ranging from assault to burglary to drug charges.

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