Why an effort to automatically expunge low-level convictions in Minnesota faces an uphill battle at the Legislature

As Minnesota lawmakers debate how to address violent crime in the state, Republicans have pushed for tougher criminal penalties and sharply criticized policies that reduce punishment for both low-level and serious offenders.

There is at least one criminal justice bill Democrats hope might draw enough support in the GOP-led Senate to pass in a year where Republicans are leaning on a “tough on crime” posture, however. Legislation sponsored by state Rep. Jamie Long, DFL-Minneapolis, would automatically expunge certain misdemeanor offenses from someone’s criminal background without the current lengthy petition process.

A similar bill proposed last year — which also included the automatic expungement of some felonies — had Republican sponsors, but the current bill doesn’t appear to have as much GOP backing in the Legislature. Still, supporters of the measure — which include the Minnesota County Attorneys Association — have sold automatic expungements as promoting fairness and easing strain on the criminal justice system. Democrats have also made an economic case for the bill, portraying the measure as one way to help short-staffed businesses, particularly those in Greater Minnesota, find workers who might otherwise be rejected for a criminal record.

“One in four Minnesotans have some type of criminal record and 90 percent of employers conduct background checks,” Long said during a hearing in the House Public Safety and Criminal Justice Reform Policy and Finance Committee on Friday. “So this adds up to being a really significant barrier to employment for tens of thousands of Minnesotans.”

Why supporters want to automate some expungements

Under current law, people must petition to have any eligible crime expunged, meaning a judge seals records so they can’t be seen by the general public. Rules vary for expunging different offenses, based on factors like severity and criminal history. Someone convicted of a petty misdemeanor or a misdemeanor must go two years without being convicted of a crime before petitioning for expungement. For a gross misdemeanor the crime-free wait time is four years. People convicted of felonies that are eligible for expungement — a list that includes failure to appear in court, cattle rustling, assaulting a police horse, wildfire arson, pirating movies and tampering with fire alarms — face a five-year long, crime-free wait time before they can file a petition.

The complicated expungement process itself takes at least four to six months and typically involves a hearing, as well as plenty of paperwork. The state courts have a 16-part video series online explaining how to file for criminal expungement.

As a result, many people don’t pursue expungement, Long said, and many people don’t know they are eligible.

The bill heard in the House’s criminal justice committee last week would create a system to automatically expunge many misdemeanors. People would have the same waiting periods for the offenses, though they would not have to go through the expungement process once that waiting period has been completed.

Many crimes would not qualify for automatic expungement under the bill, namely “person crimes,” Long said, including criminal sexual conduct, DWIs or assault charges.

The Minnesota County Attorneys Association supports the bill, said Robert Small, executive director of the organization. That’s in part because counties also don’t want to spend as much time and resources on the expungement process. Small also said it’s a “fairness issue,” where people who deserve a second chance get caught up in a “cumbersome” process where people are rarely represented by the few lawyers who specialize in expungements.

An automatic process would ease workload for the criminal justice system, and make it far easier for some people to clear their record.

Small also said Ramsey, Hennepin and Washington counties have dedicated staff to help people seeking expungement. But smaller counties don’t have the resources to do the same. “As a result, you get that assistance in Hennepin, Ramsey or Washington that you might not get in Cook County, or Lac qui Parle, or whatever,” Small said.

The Justice Action Network, which bills itself as a bipartisan criminal justice reform organization, testified in support of the legislation and said the measure was tweaked from a similar bill last year based on the experience of other states who have adopted automatic expungement policies. 

“Research shows cumbersome petition-based systems that do not automatically trigger expungement fail to provide needed relief; a 2019 study of Michigan found just 6.5 percent of eligible people obtained expungement within five years of eligibility,” Jenna Bottler, deputy director of the organization, said in a letter to the House public safety committee.

Long has also pushed his bill as a way to help businesses with a shortage of workers. Companies that see a person with a criminal record might feel obligated not to hire them even if they felt it wouldn’t impact their work, said Grace Waltz, vice president of public policy for the Minneapolis Regional Chamber of Commerce, at the hearing.

The worker shortage is particularly acute in Greater Minnesota, Long said. Waltz said the worker shortage has been worse than “anyone could have anticipated.”

Will the measure get GOP support?

Long said he is hopeful the bill can get enough Republican support to make it to the desk of Gov. Tim Walz this year. Last year’s bill was sponsored in the Senate by Sen. Roger Chamberlain, R-Lino Lakes, and co-sponsored in the House by Rep. Pat Garofalo, R-Farmington, and Rep. Jerry Hertaus, R-Greenfield.

As part of his efforts to secure bipartisan support this year, Long restricted the number of crimes in the bill that would be eligible for automatic expungement. Unlike the measure introduced last year, the updated bill says felony offenses aren’t eligible for automatic expungement.

Still, the chances of the measure gaining traction in the Senate are unclear. Chamberlain declined to comment Thursday, saying through a spokeswoman that he is focused on bills in the education committee he leads and isn’t pushing the “Clean Slate” measure in 2022.

The GOP has been holding hearings on a large number of bills aimed at tougher criminal penalties and writing new crimes into state law. On Wednesday, for instance, the Senate’s Judiciary and Public Safety Finance and Policy Committee considered a bill that requires judges to enhance certain sentences for violent offenses and another measure that would create a crime of “organized retail theft,” which is supported by the Minnesota Grocers Association (and DFL Rep. Zack Stephenson of Coon Rapids).

He said felony crimes “certainly” would need a higher bar for automatic expungement and said there are a lot of details and questions regarding what the appropriate standard should be for any new policy. But he said a “tough on crime” approach wouldn’t necessarily exclude Republicans from taking up a bill like Long’s.

“As we consider tough on crime bills we also have to consider what would be the most  appropriate qualifications for judgment and that also holds an element of compassion as well,” Limmer said. “A lot of people push thinking that redemption is a key, but so is repentance and you don’t hear too much about that as we talk about these reforms.”

In the House, Garofalo said he hadn’t read the updated bill. At the hearing last week, state Rep. Marion O’Neill, R-Maple Lake, said she wanted to know if law enforcement groups and victims’ advocacy groups support the bill. The Minnesota Chiefs of Police Association and Minnesota Sheriffs Association did not respond to a request for comment Wednesday. But Violence Free Minnesota, which helps victims of relationship abuse, and the Minnesota Coalition Aagainst Sexual Assault later released a letter expressing support for Long’s bill. The letter says victims of violence often end up in the criminal justice system themselves and often say background checks are a barrier to housing and jobs.

State Rep. Brian Johnson, a Republican from Cambridge who is the top Republican on the House’s public safety committee, said he would want the bill to move in tandem with tort reform protecting employers against lawsuits, and said he was worried Long’s bill could drive up insurance costs for businesses. (Long contends there are protections in state law for employers who hire people with expunged records.)

Still, Long said he expects to get some GOP support when the public safety committee votes to advance the bill Friday. He said removing automatic expungement for felonies from the bill was “a big concession for many,” but he said the measure would be “really meaningful for a lot of Minnesotans to help turn their lives around.”