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 ceiling, others, primarily low level drug offenses. In many situations, past criminal records harm the ability of an otherwise law, abiding individual to gain employment, housing, insurance, or loans.

The question of the Clean Slate Act is not whether

expungement of 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?

First, in almost 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 just interested in the rights of noncitizens, there are others who could be negatively impacted by this new law.

Second, 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 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.

Third, firearms purchasers. Expungement does not

cure a derogatory record on NICS. 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 it was deemed inadequate. 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 such licenses if a

matter was expunged.

Fourth, post-conviction matters. It is common for

individuals (citizen or not) to challenge convictions

after experiencing collateral consequences. This is a

significant portion of my practices for noncitizens, but other matters are relevant too such as medical or driving

licensure. Perhaps the consequences stemmed from that

conviction, perhaps it stems from multiple past events.

I need to access the record, especially transcripts, to

merely assess the case, and if needed to challenge the

conviction. People do not know the importance of

acquiring transcripts until they need them later on, which

is after some negative consequence has already occurred.

Fifth, those concerned about libel and slander. Every

defense attorney seeks exoneration for their clients in

one form or another as a case allows. What if you’re

successful? Wouldn’t your client 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. It should be

the individual’s choice. 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 or employers is left to conjecture, and a rumor

is relied on rather that fact. After all, expungement never

seals negative media attention.

Sixth, the legal community. 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? Also, records 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. There is no quick way to unseal a

record to make this known.

I fear that, in the rush to claim “historical

accomplishments,” and entranced by a catchy-titled bill,

policymakers and advocates have forgotten that criminal

records can provide benefit as much as harm.

What are other potential chilling effects of the new

law? 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?

Why is the government removing access to peoples’

own records without even asking them? It is telling that

the Clean Slate Act requires a number of notifications

prior to automatic expungement occurring, such as the

victim. But at no place is the person most affected, the

defendant, asked if they would like their record sealed.

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. 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.