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.
It is generally agreed by the task forces that have studied collateral sanctions and made recommendations that defendants should be advised of the collateral impact of convictions before entering a plea or agreeing to a settlement of their cases, and that courts should inquire of the defendant at sentencing whether s/he has received such advice.17 As early as 1997, the American Bar Association recommended that “To the extent possible, defense counsel…advise the defendant…as to the collateral consequences that might ensue from entry of the contemplated plea.”18
In Minnesota, as in most states, there is no legal requirement that such notice be provided. The Committee recognizes that it is inappropriate to require criminal defense attorneys to give advice on collateral sanctions, or to require judges to ascertain that the advice has been given, as long as information concerning the extrajudicial impact of convictions is not readily available. However, the Committee feels strongly that the general “heads up” that is frequently recommended by collateral sanctions study groups is important and that there is no reason why it should not be provided to defendants. It is true that people might not be so quick to plead guilty if they are aware of collateral sanctions, just as they might be less willing to talk to the police if they are aware of their right to remain silent. Justice is not always efficient.
All Minnesota courts should give a general notice concerning collateral sanctions of conviction and the possibility of avoiding conviction to all defendants. At present, it is so difficult to access information about sanctions that might affect specific individuals that it is unfair to charge courts, lawyers, or corrections officers with any greater responsibility. The Committee is particularly concerned about people who are charged with misdemeanors and often appear without counsel in high-volume court proceedings. They should have equal opportunity to seek dispositions that will spare them from having a criminal record. It is a sad reality that minor offenses are now doing major damage to people’s employment opportunities, even when convictions are five or more years old and involve no violence.
Criminal justice professionals must determine how best to provide this notice to every individual charged with breaking the law. Part of that task is to define clearly how juvenile delinquencies impact adult job opportunities and follow through with appropriate modifications to address that impact in juvenile courts.
The Committee has drafted a simple notice that can readily be printed and given to misdemeanor defendants. It includes a place for listing sources of additional information; this will, of course, have to be omitted when no such source is available. Some agencies represented on the Committee have begun posting and distributing the notice.
HIGH SCHOOLS, VOCATIONAL SCHOOLS, COLLEGES AND UNIVERSITIES
The Committee has received troubling stories about people who invest time, energy, and money in education aimed at getting them licensed and/or employed in particular jobs, complete their studies successfully, and then learn that they cannot be employed in the fields for which they are prepared. We learned about an 18-year-old woman with a delinquency adjudication for a serious assault at age 16 who was encouraged to complete a nursing assistant course at an alternative high school, earned a certificate in that field, and is unable to get DHS approval to work with vulnerable people – a result that the school did not anticipate, because administrators believed the delinquency would “disappear” when she reached majority. We heard from a man who borrowed money to pay for an expensive course at a for- profit vocational school and was shocked that prospective employers who initially offered him employment withdrew the offers when they learned of his 7-year-old misdemeanor record. We were told of a man who completed the two-year college degree required of Minnesota peace officers and was participating in a skills training course before he was barred because of a domestic assault conviction that made it illegal for him to use or possess a firearm.
While there may be schools that warn students to consider their criminal records when they choose vocational training, the public non-profit institutions contacted informally had given little consideration to the impact of criminal justice system contacts on employment. They were troubled by their failure and will likely do what is necessary to inform themselves and caution students. A state employee charged with monitoring for-profits expressed confidence that counselors were discussing criminal records with prospects; it is, however, hard to believe that such schools are performing better than nonprofits concerning these issues.
17 National Conference of Commissioners on Uniform State Laws. (2007) Sections, 5, 6, & 7; American Bar Association. (2004).
18 American Bar Association. (1999). Standard 14-3.2(f).