Background Checks:



CriMNet Background Checks and Expungements Delivery Team Report

BACKGROUND

CriMNet noted increasing concern about background checks and expungements, and hired the Management & Analysis Division (MAD) of the Minnesota Department of Administration to perform research and analysis in this area. MAD produced a very lengthy report based on research and anecdotal interviews. CriMNet formed the Background Checks and Expungements Delivery Team to receive the report and make policy recommendations. Below is a summary of the Delivery Team report.

Court Representation on Delivery Team:

Kelly Mitchell

Judge Randy Slieter

Susan Stahl (Renville County)

TIMELINE

• Draft report delivered to Delivery Team November 13th for comment. Able to be circulated to constituents represented by Delivery Team members at that point.

• Report will be finalized by December 1.

• CriMNet Task Force will discuss on December 8.

• CriMNet Policy Group will discuss on December 13 and 18.

REQUEST FOR FEEDBACK

Because this report contains significant recommendations that, if presented to and approved by the Legislature, could impact court process, judges and court administrators should be given an opportunity to review the report and provide feedback for use by our court representatives on CriMNet.

Court Representation on CriMNet Task Force:

Judge Tom Mott

Judge Randy Slieter

Susan Stahl (Renville County)

Chris Volkers (Washington County)

Court Representation on CriMNet Policy Group:

Judge Hunter Anderson

Justice Paul Anderson

Sue Dosal

Bob Hanson

Judge Tom McCarthy

SUMMARY OF RECOMMENDATIONS

Note: Recommendations regarding expungement appear second in the report. However, because will have a greater impact on the courts, it is recommended that they be given priority attention over the background check recommendations.

Expungements:

1. Create process for automatic expungement as follows:

o Arrests – non person crimes and no charges filed, automatic one year after arrest.

o Dismissed charges[1] – automatic one year after charges are dismissed.

o Stays of adjudication and continuances for dismissal – automatic after completion of all conditions.

o Diversion – automatic after successful completion; responsibility of court if post-plea diversion, responsibility of prosecutor if pre-plea diversion.

2. Create following framework for eligibility to petition for expungement:

|Conviction Level (as opposed to |Felony |Gross Misdemeanor |Misdemeanor |Petty Misdemeanor |

|charge level): | | | | |

|Person Crime[2] |15 years |10 years |7 years |3 years |

|Other Crimes |5 years |3 years |2 years |1 years |

o Persons nevertheless ineligible to petition for expungement for: a) registration crimes, when currently registered; b) traffic offenses; c) one of two charges stemming from the same set of facts when the person pleads to the lesser of the two offenses.

o Time period above restarts if the person commits a new offense other than a petty misdemeanor.

o A person is not eligible for expungement until he or she has completed probation and all conditions associated with the sentence (i.e., payment of fine, payment of restitution, etc.).

o Persons eligible to petition under same timelines above for expungement of juvenile adjudications that are public (delinquency or EJJ cases where child is alleged to have committed a felony and was 16 or 17 at the time).

3. Change access provisions to allow expunged records to be accessible to courts, law enforcement, prosecutors, probation officers, and corrections officers without a court order.

4. Change access provisions to allow expunged records to be available to agencies conducting statutorily mandated background checks if the agency provides a review process that includes the right to administrative or judicial review (primary example is DHS).

5. An expungement should remain a conviction for purposes of gun laws, sex offender registration, other expungement proceedings, sentencing, subsequent prosecution, other crimes evidence, impeachment (in other words, for all criminal justice purposes), and statutorily mandated background checks.

6. Include in statute that the effect of expungement is to restore the person to the status occupied before arrest, indictment, information, or conviction.

7. Process issue – request petitioner to include copy of conviction record with petition for expungement to speed the process along, especially with regard to petition for an older offense.

Background Checks:

1. Create a grid scheme for background checks so that the sources of information for background checks are more predictable based on the risk necessitating the background check.

o Recommendations incomplete. See chart on pages 10-11 of report. Italicized language indicates sources of information that are in addition to the sources noted at that risk level.

o Open arrest and suspense data available to public agencies only.

o Request further study on use of juvenile adjudications.

2. Require fingerprint-based checks of the state criminal history repository for all statutorily mandated background checks, even in cases where an FBI check is not required.

3. Institute informed consent and privacy protections as follows:

o Provide information/consent form to the subject of a background check (including the type of check that will be performed, duration of the check, whether the information will be disclosed to others, etc.).

o Provide subject with notice of disqualifying offenses.

o Provide subject with copy of results.

o Provide notice of the subject’s right to access and correct data.

o Notify the subject when the background check is complete and inform subject who initiated it.

4. Require that information or fingerprints provided for the background check only be used for background check purposes.

5. Make two current permissive background checks mandatory at no cost to the subject:

o K-12 volunteers, student employees, and independent contractors seeking to work in schools.

o Employees or volunteers for public, private and nonprofits who work with children and are not checked under another statute.

6. State agencies should provide statutorily mandated background checks at no cost for volunteers for nonprofits or political subdivisions/agencies if not otherwise reimbursed.

7. Legislature should support the direct costs of federal and state statutorily mandated background checks for volunteers for nonprofits or political subdivisions.

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[1] Note that because there is a requirement that the prosecutor agree to the stay of adjudication or continuance for dismissal there is an implementation issue with regard to making these expungements automatic because the courts do not currently track prosecutor agreement.

[2] Note that the Delivery Team was unable to define “person crime” and instead left that up to the Legislature to define.

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