This is part of a series recommending changes to how Minnesota handles criminal records and employment. The full report is here: Criminal Records and Employment in Minnesota.
While the topic of collateral sanctions, and that of offender reentry in general, has recently gained attention in Minnesota, it has been the topic of discussions across the country for almost a decade. While serving as Attorney General in the late 1990’s, Janet Reno focused on offender reentry, committing significant Department of Justice funds toward reentry issues. (See footnote 1.) Her work was continued by Attorney General John Ashcroft, who, in collaboration with several other federal departments, implemented the Serious & Violent Offender Reentry Initiative in 2003. This initiative committed $100 million to the development of prisoner reentry programs across the country. (See footnote 2.) In his 2004 State of the Union address, President George W. Bush recognized the importance of reentry efforts: “America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.” (See footnote 3.)
Members of Congress have also addressed the need to help ex-offenders remain law-abiding by normalizing their daily lives. In 2007, Representative Danny Davis (D-IL) and Senator Joe Biden (D-DE) introduced the Second Chance Act of 2007, H.R.1593/S.1060; the bill authorizes the appropriation of roughly $180 million in grants for the development of reentry initiatives aimed at reducing recidivism. The bill passed the House of Representatives on November 13, 2007, and has been referred to the Senate Committee on the Judiciary. (See footnote 4.)
In August of 2003, the American Bar Association House of Delegates approved standards specifically addressing collateral sanctions. (See footnote 5.) They were published in ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons. (See footnote 6.) The ABA concluded that due process requires that defendants receive notice of collateral sanctions prior to entering a guilty plea. They recommended that a judge should have the discretion to provide relief from any collateral sanction at the time of sentencing. (See footnote 7.) These and other ABA recommendations were taken into consideration in the development of this report.
The National Conference of Commissioners on Uniform State Laws (NCCUSL) is currently drafting its own proposals for addressing collateral sanctions. Their “Uniform Act on Collateral Consequences of Conviction,” like the ABA standards, emphasizes the importance of raising awareness of collateral sanctions and making it possible for defendants to understand the extra-judicial consequences of conviction before they enter a plea in court. (See footnote 8.) Michele Timmons, Minnesota’s Revisor of Statutes, is a member of the drafting committee; and Judge Jack Davies, a former Minnesota legislator, is an ex officio member.
The increasing attention to issues of offender reentry and collateral sanctions is, in large part, motivated by policymakers’ awareness that the number of Americans involved with the criminal justice system continues to expand. Approximately 2.2 million people are currently incarcerated in prisons and jails throughout the United States, a 100 percent increase over the number incarcerated in 1990. (See footnote 9.) According to the Bureau of Justice Statistics, roughly seven million Americans are under some type of correctional supervision on any given day (i.e: probation, parole, or incarceration), roughly 60 percent more than the approximately 4.4 million under supervision in 1990. (See footnote 10.)
Minnesota has seen a dramatic increase in its offender population, as well. In 1990, there were about 8,800 felony sentences in Minnesota; in 2006, the Minnesota Sentencing Guidelines Commission (MSGC) processed about 16,400 felony sentences and there were nearly 163,000 non-traffic misdemeanor and gross misdemeanor convictions. (See footnote 11.) According to the Minnesota Department of Corrections, roughly 7,700 offenders were released into the community in 2006. (See footnote 12.) It is important to note that, because an offender can be released more than once in a given year, this figure does not necessarily represent 7,700 different individuals; some offenders may be counted more than once.
The same ideas and beliefs that have fueled the expansion of criminal punishment have contributed to the expansion of the negative consequences lawbreakers – and even people who are arrested but never charged with a crime or required to appear in court – experience in their communities. As we have focused our efforts to reduce crime on putting offenders away for the longest time we can afford, we have neglected the more important business of reducing recidivism among the offenders who will continue to live among us. It has become increasingly difficult for people who break the law to put their crimes behind them and to exercise the rights and responsibilities that are essential to normal adult lives. The extra-judicial collateral sanctions imposed by prospective employers, licensing agencies and landlords are often more severe and longer-lasting than criminal punishment. Many of them are disabling to an extent that is grossly disproportionate to whatever behavior or suspected behavior triggers them.
At the same time that Minnesotans, like our fellow Americans, were becoming more committed to severe punishment and isolation of criminals as the best way to increase public safety, we were increasing our capacity to discover details of each other’s lives that previously might have remained private. Courts and law-enforcement agencies that keep public records, which historically have been obtainable to those who take the trouble to go to the locations where they are held, have made the data available electronically. Courts post their criminal dockets on the internet as a convenience and maintain telephone and computer services providing access to criminal records. The Department of Corrections website makes it easy to find information about inmates. (See footnote 13.)
Such actions by government agencies are motivated by positive goals, such as improving service to the public and making government activities more transparent and intelligible to the people who pay for them. There are many benefits to all of us in having easy access to government data that touches on important decisions, such as hiring the best employees. There is a growing interest in making accurate public data, especially criminal record data, available. It is difficult, in a democracy built on free speech and free sharing of ideas and knowledge, to argue that it should be harder to access public records that have a real relationship to making sound hiring decisions.
Both nationally and in Minnesota, resources are being devoted to designing methods of providing accurate and fair reports of criminal records to agencies and individuals who have good reason to receive them. (See footnote 14.) While it is essential, at the same time, to design methods of sealing certain records for people who are unjustly burdened by them, locking information up has significant philosophical and practical limitations in this Information Age. Minnesota might create the most rational and equitable laws limiting access to criminal data – indeed, we hope it will – but those laws must not be limited by the notion that we can adequately serve justice by keeping secrets. We must also respect the growing demands of employers and licensing agencies for accurate and complete information about prospective workers and licensees.
Those who do not find that idea persuasive must nevertheless acknowledge the reality that vast quantities of personal information, including information about arrests and convictions, are already “out there” on the internet. Entrepreneurial “data miners” sometimes sell reports of personal data for less than ten dollars, and they are produced for anyone who chooses to pay.15 It has become so cheap and easy to lay out the details of every person’s every contact with the criminal justice system that even employers hiring workers for jobs in which there is little contact with people or valuable property buy background checks and refuse to hire those with any court or arrest records.
In a society that is so concerned with punishing criminals, this glut of data is an essential contributor to a situation in which those who “do the crime” can no longer earn re-entry into society by “doing the time.” As was noted in the Introduction, even people who most of us would see as entirely “normal,” and who may not have conviction records at all, are being denied employment because they were arrested or appeared in court. Since the data miners who create many of these background reports are unregulated, do not use fingerprints to verify identity, and may not understand the differences among continuances for dismissal, stayed sentences that were never imposed, and convictions, there is no guarantee that a disabling background report is accurate, is up to date, or even that it pertains to the correct person.
The Collateral Sanctions Committee has sought to engage realistically the challenges of making sure that Minnesotans with criminal records, and those unfairly tainted by minor contacts with the criminal justice system, are able to get jobs for which they are fully qualified. The multifaceted and cumulative nature of the difficulties people are currently encountering call for a wide range of responses, some of which will be much easier than others to achieve.
1 Reno, J. (2000, Feb. 29).
2 Office of Justice Programs.
3 Bush, G.W. (2004, Jan. 20).
4 Library of Congress. (2007); Congressional Budget Office. (2007, April 17). 5 American Bar Association. (2004b).
6 American Bar Association. (2004a).
7 Ibid. At Standards 19-2.3, 19-2.5 .
8 National Conference of Commissioners on Uniform State Laws. (2007). 9 Bureau of Justice Statistics. (2007).
11 Minnesota Sentencing Guidelines Commission. (2007); Minnesota State Court Administrator’s Office. (2007). 12 Minnesota Department of Corrections. (2007).
13 Minnesota Department of Corrections. (2007c).
14 Office of the Attorney General. (2006); CriMNet Task Force, CriMNet Policy Group: http://www.crimnet.state.mn.us/.