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.
The issues and recommendations set out in this report are not complete enough to constitute a full, coherent program adequate to address the impact of criminal records on employment. However, they are all in harmony with broad principles that the Committee recommends be kept in mind as Minnesota moves forward on the task of insuring that contact with the criminal justice system does not unreasonably keep people from getting the work they need to be productive citizens.
A. CRIMINAL DATA
- Public safety is enhanced when ex-offenders are able to work and to support themselves and their families. We must, therefore, make it easier for them to gain acceptance in society by insuring that access to criminal record data is limited responsibly, that the data is correct and intelligible to employers, and that employers are encouraged to weigh the data’s impact fairly.
- Public safety is enhanced when employers are readily able to learn of all criminal data that reasonably bears on an individual’s suitability for a particular job, especially when the job provides access to vulnerable people.
- It is desirable to seal criminal records that do not bear on a person’s honesty or on the risk that s/he may harm another.
- Since it is appropriate that many criminal records remain reasonably available to employers, it is desirable to create legal processes by which rehabilitated ex-offenders may receive official determinations that their records should not bar them from employment. Examples include certificates of relief from disability, certificates of good conduct, and pardons. These legal determinations should provide relief from liability for employers who hire those who receive them.
- While reform in the state’s management of its criminal records is essential to rationalizing their impact on employment, it is not adequate. A vast amount of personal data, including criminal data, is being gathered from many sources and sold by entrepreneurial data miners. These businesses should be regulated by the state, and the regulations should include civil penalties for violating the law and civil liability for damages caused by the dissemination of false or erroneous information.
B. STATUTORY SANCTIONS AND PROFESSIONAL LICENSES
Minnesota law includes many bars from specific jobs or professional licenses that are triggered by criminal convictions. In addition, licensing agencies are often authorized to consider other kinds of contact with the criminal justice system – such as arrests, or charges not resulting in conviction – when deciding whether an individual will be given a license. The following principles should govern these areas. To the extent that a statute, or a licensing agency’s practice, does not meet these standards, it should be reformed.
- In general, statutory bars should be triggered only by convictions. There are reasons why certain state licensing agencies, particularly those which evaluate individuals who seek employment in areas where there is access to vulnerable people or significant risk of theft or fraud, might wish to investigate further the facts underlying an arrest not leading to conviction. In those cases, the arrest should not, in itself, constitute a bar or a reason to deny licensure. Investigations into arrest should have clearly-defined procedural safeguards, including the right of the subjects to notice and an opportunity to provide evidence on their own behalf.
- There should be a clear relationship between the conviction barring employment and the employment itself. For instance, a conviction for welfare fraud should not bar employment as a nursing assistant in a nursing home where patients do not keep valuable personal property in their rooms.
- There should be no conviction that triggers an absolute or permanent bar from employment. Licensing agencies should have the discretion to determine whether a person has been rehabilitated, or whether the actual facts of a crime constitute evidence of unsuitability for a particular job. Many agencies have the ability to issue provisional licenses, or to authorize a person to work in a specific job where there is no real risk of harm to anyone. They should be allowed to make such accommodations when they are clearly justified.
- Bars to employment should be proportional to the seriousness of the convictions that trigger them. Thus, less serious offenses should bar employment or licensure for a shorter period of time than crimes presenting a greater degree of risk to others.
- “Look-back” periods – that is, the length of time for which convictions bar employment – should be carefully defined, with serious consideration to what is known about recidivism, the ranking of specific crimes in our sentencing guidelines, and other factors bearing on a rational calibration of the look-backs. Because misdemeanors are numerous and cause serious damage to people’s employment opportunities, it is particularly important not to create unnecessarily long look-backs for them. Look-backs should not be based on “magic numbers,” such as 3, 5 or 7, that come readily to mind. They should not be based solely on some already-established criminal look-back that has nothing to do with employment.
C. NOTICE AND INFORMATION
- Minnesota has taken the important first step of gathering all statutory sanctions into one chapter of our statutes, chapter 609B.16 However, the sanctions are still difficult for an individual concerned about a particular conviction or a particular license to find and understand. We should continue to clarify and catalogue sanctions until they are clear and easily accessible to people charged with crimes, criminal justice professionals, schools, job-seekers, employers, and anyone else interested in them.
- Once information on collateral consequences of conviction is readily available, we should create Rules of Criminal Procedure adequate to inform those charged with crimes about sanctions beyond a criminal sentence that they will suffer if they are convicted. Since criminal justice professionals have not had ready access to information on collateral sanctions, it is understandable that there is presently no legal responsibility to mention them in court. However, once the needed information is available, it becomes unfair for the criminal trial process to ignore penalties that are directly triggered by conviction and are often longer-lasting and more damaging than a criminal sentence.
- The Rules of Criminal Procedure should include one or more samples of general notices regarding collateral sanctions for use in the state’s courts. Procedures should be developed to require the provision of such a general notice to all individuals ticketed or charged with misdemeanors and felonies. The notice might be given with a ticket, summons, or complaint; it might be given in court. In any case, the Court should inquire, prior to the entry of a plea, whether the defendant has received the notice. This notice is appropriate now and does not require the improved information referenced above.
- The state must insure that public schools, and private schools regulated by the state, have basic knowledge of collateral sanctions and that students be informed that criminal records may bar them from certain jobs before they enter and/or pay for vocational training.
- Every effort should be made to provide meaningful vocational training and work experience within the corrections system. Any program created for this purpose must be evaluated in terms of its impact on recidivism.
- Thestateshouldworkwithemployersandunionstocreatemorepowerfulincentivesfor them to train and hire ex-offenders. The work should include the identification of important barriers, such as liability for hiring people with criminal records and the lack of work experience among ex-offenders, and the creation of initiatives designed to reduce them.