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Minnesota must reform its criminal expungement system

The process for obtaining criminal expungement is an obstacle course. It is in many ways designed to make the re-entry of individuals with criminal records impossible.

Authors are, left to right: Kshitiz Karki, Alyssa Scott, Sasha Hulsey and Olivia Reyes.
Authors are, left to right: Kshitiz Karki, Alyssa Scott, Sasha Hulsey and Olivia Reyes.

What if you were unable to access housing or find a job with a livable wage? And you couldn’t access public benefits that might be able to help, you lost your parenting rights, and were not able to exercise your right to vote? This is often the reality individuals with a criminal record face in our society simply because they cannot remove the stigmatizing label of “criminal.”

One legal remedy available in Minnesota is criminal expungement, the sealing of criminal records. But it’s not working: The cost, time — including an in-person hearing — and intricacy of the process make expungement something many Minnesotans can only dream of. This is a miscarriage of justice.

Our criminal justice system demands rehabilitation but does not support individuals as they try to re-enter society after a criminal conviction. The current system keeps people in poverty or engaging in other criminal activity as a means to survive and needs to be addressed more comprehensively by the Minnesota Legislature.

Disrupt the cycle

We know that an individual’s criminal record often determines future interactions with the criminal justice system and can easily become cyclical. Criminal expungement, when allowed to work properly, can disrupt that cycle of crime, stigma, poverty, and despair. We are long past the time to consider the full spectrum of an individual’s interaction with criminal justice, from a first interaction with the police to expungement of their criminal record once they have served their time.

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Our research in this area has led us to conclude that criminal justice policy and police reform must be informed by those most directly affected by current policies. We should also look beyond police brutality in order to address structural racism in the criminal justice system.

This system is stacked against the re-entry of certain groups with criminal records, especially against individuals who are victims of sexual exploitation and who have prostitution and prostitution-related convictions. Research shows that many people who are arrested for prostitution are also victims of exploitation and trafficking. They are then arrested and potentially charged for crimes — including petty theft, check fraud, or drug possession — that may be caused by their circumstances of exploitation. These arrests and charges follow them forever, impeding their ability to thrive. They are forced to live with a criminal record that exacerbates their feelings of trauma, stigmatization, and shame.

What next? Address criminal justice policy more broadly

After two special sessions of the Minnesota Legislature following the murder of George Floyd and subsequent uprising, both of which focused on police brutality, a police reform bill was passed that unfortunately does not go far enough to address structural racism in the criminal justice system. For that reason, we are proposing several recommendations, based on feedback we received from individuals who are victims of sexual exploitation and trafficking, and more than 35 interviews with professionals working in and around the criminal justice system.

Minnesota legislators must now direct their attention to criminal justice policy more broadly.

Change policy design processes. Policy should be, first and foremost, informed by those most affected. Many policies around criminal justice and police reform have not been informed by those affected, and thus have resulted in greater harms than benefits.

Standardize the expungement process. Wide variations in the expungement process across Minnesota counties and cities make it difficult for individuals who need to file for expungement in several counties. Many counties across the state do not even hear expungement cases.

Shorten the time requirements to access expungement. Before filing an expungement petition, individuals must wait between two and five years, depending on the type of conviction, without committing any other offenses (including traffic violations).

Support H.F. 3816 — The “Clean Slate Act.” This bill would allow automatic expungements for certain convictions. Individuals would not have to file expungement petitions or navigate the complicated process, but rather be led through prosecutorial agreements. A provision in the bill would also benefit individuals who have been sexually exploited.

As things stand today, the process for obtaining criminal expungement is an obstacle course. It is in many ways designed to make the re-entry of individuals with criminal records impossible, thus creating a cycle that forces individuals into generational poverty or crime as a way to survive. We need to break this cycle, which involves legislators addressing more than police brutality.

In February 2019 at the University of Minnesota, Sasha Hulsey (MPP, MPH), Kshitiz Karki (MPP), Olivia Reyes (MPP), and Alyssa Scott (MPP) began researching the barriers individuals with prostitution and prostitution-related crimes face when accessing criminal expungement. They have done extensive work in this area, including an emphasis on participatory policymaking. 

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