Don’t Seal/Expunge Noncitizen Criminal Records!

In 2023 the Minnesota legislature enacted the Clean Slate Act. It involves expanding the types of past criminal convictions that can be sealed from public view, as well as automatically sealing others, primarily low level drug offenses. The reason is that, in many situations, past criminal records harm the ability of an otherwise law abiding individual to gain employment, housing, insurance, loans, or the like.

 

The question of the Clean Slate Act is not whether expunging criminal records is good. The question is whether a system of automatic expungements has been crafted to prevent unintended harm to those who actually benefit from access to their own criminal records.

 

Who are some of these people?

 

Noncitizens. In every immigration application, noncitizens have an affirmative duty to disclose any arrest and provide certified records of any arrest, charge, conviction, probation, probation completion, and in many instances court transcripts—regardless of final disposition. This is the case even if a matter is dismissed or even a conviction that that doesn’t disqualify a noncitizen of some immigration benefit (green card, naturalization, e.g.). If their records are automatically expunged, Minnesota statute now requires noncitizens to make a motion in court to unseal their records, and request the records remain as such, in order to retrieve required documentation. This assumes the individual still recalls the file number. Omission of even one record will result in an immigration denial. Furthermore, in-custody deportations present even greater challenges. These cases are expedited, sometimes within a month or two, so the new law leaves no time to even unseal records especially if there are multiple matters. Access to records that demonstrate a noncitizen was exonerated, or that even present equities toward a discretionary decision, can make or break a noncitizen’s life in America as well as that of their families.

 

If you’re not interested in the rights of noncitizens, there are many U.S. citizens who could be negatively impacted by this new law.

 

Military Applicants. Similar to immigration applications, applicants to service branches must be truthful about prior arrests regardless of end result. If the answer to “have you ever been arrested” is “yes,” she can be denied the chance to serve our country because neither she or the military will be unable to locate any proof of she’s still eligible. I confirmed with three defense counsel, who are veterans, that this is particularly concerning when service members seek a security clearance. Furthermore, many people believe that since employment laws, as well as §152.18 first time drug dispositions, entitle them to deny a matter ever existed. They may now believe all situations allow them to deny they were charged with a crime. This would be fatal with both military and immigration applications. I have had many clients tell an immigratio officer that they have never been convicted of a crime because their expungement attorney applied Minnesota's expungement law to federal matters.

 

Global Entry. If you ever travel internationally, you’ve seen adverts at airports for “Global Entry.”  Basically, it is TSA Pre-Check for returning to the U.S. from abroad. There’s a shorter line through customs, but only for those who have applied and gone through a background check and personal interview.  Recently, someone from our local social media community reported their Global Entry application was denied because of a prior a misdemeanor for which the complete, certified record was difficult to provide. The interviewing officer from U.S. Customs and Border Patrol said the court documents must be provided or the Global Entry could not be approved.  To clarify, this particular situation occurred prior to enactment of Minnesota’s Clean Slate Act. It was also not technically expunged/dealed by a court. My advice remains. Any expungement going forward, voluntary or not, can have the same effect. 

 

Firearms Purchasers. Expungement does not cure a derogatory record on NICS, which is the background check system operated by the FBI for firearm purchases. One of my clients was once denied a firearm purchase because of a prior conviction. When I successfully vacated and sealed the conviction, he still failed the background check because the FBI only had the prior derogatory record in its file. Because of the expungement, NICS could not access the court file to see he was now eligible. Before you ask, I provided a certified copy of the court order vacating the conviction but the FBI deemed it inadequate. The needed to see for themselves. The matter was then unsealed and my client was allowed the purchase. The case must remain unsealed lest he be denied again.

 

This goes for concealed carry applications as well, where sheriffs have been known to deny or delay such licenses if a matter was expunged.

 

Post-Conviction Matters. It is common for individuals (citizen or not) to challenge convictions after experiencing collateral consequences from a case. This is a significant portion of my practice for noncitizens, but other matters are relevant too such as medical or driving licensure, jobs, or housing.  Perhaps the licensure (or other consequences) stemmed from that conviction, perhaps not. Or perhaps it stems from multiple past events. To advise and act on a case properly, I need to access the record to merely assess the case and, if needed, challenge the conviction. Imagine a doctor trying to assess your health issues without past records.

 

Plus, people do not know the importance of acquiring a hearing transcript that gets sealed with the record until they need them later on, which is usually after some negative consequence has already occurred.

 

Libel and Slander. Every defense attorney seeks exoneration for their clients in one form or another as a case allows. What if the case is successful?  Wouldn’t the defendant want evidence that a criminal charge was the result of false accusations, shoddy investigation, and/or bad judicial rulings?  Maybe not, but a lot of times they would. The point is that the individual should have some choice in the expungement. After all, who would believe a defendant, acquitted of child molestation charges, that they were the actual victim of an imperfect system?  

 

Without access to records, someone’s treatment by neighbors, media or employers is left to rumormongering that can spread like wildfire, especially these days in the era of misinformation.  Suddenly, a rumor is relied on rather that fact.  In an unfortunate twist of irony, an expungement seals the truth, not conjecture.

 

Attorney Accountability. Every defense attorney has come across the need to assess a case based on prior records, whether relevant or not. It is an essential part of our due diligence and professional responsibility requirements at the least. I would like to know if I’m telling the truth when I tell a judge my client has no criminal history whatsoever. If it’s not the truthful, am I reportable?  

 

Serving Justice. First, past history of low-level convictions, as well as outright dismissals, often serve as mitigating factors not only for future charges but applications for future licenses and benefits. Every defense practitioner has, as one time or other, argued in favor of a client that a prior matter was dismissed or reduced for various equitable reasons. Under current law, there is no quick way to unseal a record to make this known. 

 

Next, what are other potential chilling effects of the Clean Slate Act? If a low-level conviction now has the certainty of expungement, will the dynamics of plea negotiations be altered? Will the state now consider higher level charges that they know won’t be expunged? With possibility of a record being sealed, are we removing the tool of a reduced charge from a higher-level offense? I have listed a number of communities who need their records accessible, even when charges are dismissed, and who would be harmed if the records don’t remain so. Have the advocates of the Clean Slate Act enumerated situations where dismissed charges, which generally don’t show up on employment and housing checks, are so necessary to expunge that the law doesn’t even ask if the defendant would like them sealed?

 

What Next?  So why is the government removing access to peoples’ own records without even asking them? The bureaucratic impact of informing defendants of expungement is not a reason, because the Act put the burden of accomplishing this task on the BCA and courts without process, funding, or instruction. And yet it is telling that the Clean Slate Act does actually require a number of notifications prior to automatic expungement occurring, such as the victim. So the cost and bureaucratic impact of prior notification is no argument. But at no place is the person most affected, the defendant, asked if they would even like their record sealed.

 

I fear that, in the rush to claim “historical accomplishments” and entranced by a catchily-titled bill, Minnesota policymakers and advocates sacrificed an essential part of the justice system—that people are entitled to their own public records, and that those records can provide just as much benefit to the individual as harm. At bare minimum, one should be allowed input in their own expungement. After all, it’s their record.

 

At minimum, the process could notify a defendant of impending expungement, with an advisory consult an attorney on best options, and allow the opportunity to decline. 

 

Of course, automatic expungement of criminal records will benefit a fair number of people. This article does not rebut the clear benefits to many people. However, professional policy-makers have a duty to create laws that don’t exacerbate problems, particularly for the very people the policy hopes to assist. I think the new Clean Slate Act as it is written will indeed exacerbate problems for as many people as it helps.