This post 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.
In 1974, the Minnesota Legislature declared:
…that it is the policy of the state of Minnesota to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the resumption of the responsibilities of citizenship. The opportunity to secure employment or to pursue, practice, or engage in a meaningful and profitable trade, occupation, vocation, profession or business is essential to rehabilitation and the resumption of the responsibilities of citizenship.39
That policy statement introduced a group of statutory provisions that served two goals: increasing rehabilitation of ex-offenders by putting them to work; and protecting the public by keeping ex-offenders from jobs where, based upon their criminal history, they might be likelier than others to harm people or property. Three decades later, we have experienced the difficulties of setting rehabilitation as a goal for policy.
Rehabilitation is defined differently by different people, and the programs we design to be rehabilitative are strongly culture-bound. Judges must decide what people whose lives, choices and cultural mores are strikingly unlike their own have to do to achieve the desired state of functionality and adherence to social norms. Similar offenders receive very disparate treatment in the criminal justice system, depending on the personalities and values of the professionals who deal with them, where they commit their crimes, and – all too often – how similar they and their families are to the people who sentence them.
There is no clear standard for determining whether a person is rehabilitated, and no credible way to measure the effectiveness of a particular program or approach in terms of rehabilitation. Neither offenders nor their victims have any certainty about how long they will be subject to state control. When the paying public is told that, in order to make them better, criminals are being educated, receiving chemical dependency treatment, or being given vocational training, citizens ask questions like, “How is it fair that the guy who robbed me is being trained to be a programmer and my son, who obeys the law, can’t afford a vo-tech program?” Rehabilitative programs are seen as soft, value-laden “social work” that is not appropriate in a correctional system.
In 2008, government’s goal is reducing recidivism, rather than making offenders healthier. It is clear that, if we increase the chances that the vast majority of offenders who will eventually be living unsupervised in their communities will remain law-abiding, we are protecting public safety. We can clearly see whether an ex-offender commits new crimes. We have learned that some popular and allegedly rehabilitative approaches do not reduce criminal behavior and, in fact, may increase it.40 We have determined empirically that some approaches are truly effective, that programs are not “one size fits all,” that it is essential that new programs be designed in such a way as to capture the data necessary to measure their value, and that it is worth paying for that measurement.
The desired result, whether one thinks in terms of rehabilitation or in terms of recidivism, is virtually identical: a person functioning in such a way that crime is not appealing. But focusing on recidivism clarifies policy in a way that rehabilitation does not, and it improves the chances that we will reach the desired result. In Minnesota, the over-arching goal of the criminal justice system is to protect public safety, and reducing recidivism is essential to that goal.
While the centrality of rehabilitation in M.S. §364.01 may be anachronistic,its mandates are entirely in keeping with the collateral sanctions policy set out in this report. When the Committee first looked at M.S. §364, it seemed that it would make sense to amend the law so as to make it applicable to private employers, or at least to private employers contracting with the state. It also seemed desirable to create a stronger, more practical enforcement mechanism than the law now contains. But, as we learned more about how criminal records affect employment, we realized that, today, the law is honored more in the breach than in the observance.
Starting in 1983 and continuing through 2005, the Legislature has increased the number of ex- offenders who are not covered by the law. Some changes have been made to M.S. §364 itself. In addition, new laws that appear to conflict with both the spirit and the letter of the 1974 statute have been enacted. Minnesota Statute §364.03, subd.1, provides that
Notwithstanding any other provision of law to the contrary, no person shall be disqualified…from engaging in any occupation for which a license is required solely or in part because of a prior conviction…, unless the [conviction]…directly relate[s] to the position…or the occupation for which the license is sought.
In 2005, the Legislature amended M.S. §245C, which relates to licensure by the Department of Human Services, to add a number of absolute bars. The amended statute lists convictions which absolutely bar licensure for a specified number of years or, in some cases, forever.41 DHS is, therefore, precluded from determining whether a listed conviction “relate[s] to the position…for which the license is sought,” as M.S. §364 requires it to do. Although M.S. §364.03, subd.3, provides that an applicant for licensure must be allowed to show “competent evidence of sufficient rehabilitation and present fitness,” the 2005 amendment allows for no such showing. Other statutory bars enacted after 1974 similarly conflict with M.S. §364.
The responses to the Committee’s exploratory survey of Minnesota’s licensing authorities (see Licensing and Background Checks section), show that some licensing agencies not listed in the exceptions to M.S. §364 and to whom the law’s provisions, therefore, apply, are evaluating criminal convictions informally and idiosyncratically, as opposed to using procedures consonant with the statute. 42 Almost none of the responding agencies made any reference to M.S. §364, even though they were asked about the standards they use in deciding whether ex- offenders will be licensed.
The Legal Action Center, a New York justice policy institution, has scored the states according to how well their laws and policies protect public safety by promoting successful reintegration of ex-offenders. The highest-ranked state is New York, with a score of10; the lowest is Colorado, with a score of 48. Minnesota has a score of 31 and is ranked 24th.43 This evaluation has as one assumption the belief that Minnesota actually follows the law set forth in M.S. §364; if we remove that assumption, the state would likely fall substantially in the rankings. Several studies summarizing the states’ responses to collateral sanctions issues make the same assumption. Minnesota is regularly recorded as a jurisdiction that has implemented some important employment procedures, because they are contained in M.S. §364.
1. Make M.S. §364 and actual practices consistent.
If the Legislature decides to continue working on removing collateral sanctions that irrationally burden job-seekers, it will be important to determine exactly how state agencies and private employers who do state work may use criminal records in hiring and licensing. Then it will be necessary to draft a new statute, or to amend M.S. §364, in order to implement that determination. This process should include surveying and consultation concerning the practices of Minnesota’s municipal and county governments, several of which have recently created new hiring procedures intended to make certain that criminal records do not unfairly bar employment.44 In addition, there should be consideration of whether private employers should meet the same standards as government in weighing criminal records. Any new law in this area should include practical enforcement mechanisms. The existing law provides that “complaints or grievances concerning violations…shall be processed and adjudicated in accordance with… chapter 14 [of] the Administrative Procedure Act.”45 This provision is inadequate, as witness the fact that most of the licensing agencies that responded to the Collateral Sanctions survey had no apparent knowledge of its existence.
39 M.S. §364.01 (1974).
40 Sherman, L.W., et al. (1998); Wilson, J.A. (2007).
41 M.S. §245C.15 (2005).
42 M.S. §364.09 (1974).
43 Legal Action Center. (2004).
44 E.g.: St. Paul, November 2007, initiative of Mayor Chris Coleman.
45 M.S. §364.06 (1974).