LGN Law Clerk Authors Minnesota Law Review Blog Post
LGN Law Clerk Abby Ward recently authored a blog post inspired by her experience at the firm working on a pro bono criminal expungement case. Her blog post originally appeared on the Minnesota Law Review's website and can be read in full below.
KEEP ROLLING: AFTER PROVIDING AUTOMATIC EXPUNGEMENT FOR CERTAIN MARIJUANA OFFENSES MINNESOTA SHOULD ENACT AUTOMATIC EXPUNGEMENT FOR OTHER CRIMINAL RECORDS
The racially discriminatory impact from the War on Drugs is clear, and while marijuana legalization is one step in addressing the inequities of America’s criminal justice system, the work does not end there. States should also enact broader expungement reforms. This 2023 session, Minnesota is likely going to legalize recreational marijuana. The current House bill (Cannabis Bill) would automatically expunge lower offenses of marijuana use after an individual meets certain requirements. As state legislatures increasingly consider recreational marijuana legalization, activists argue those bills must include proposals to help people easily expunge their records, like the Cannabis Bill provision. As a result, marijuana legalization is a groundbreaking area for criminal justice reform and should be utilized to advance other criminal record reform.
Broader criminal record reform is needed because the effects of having a criminal record are devastating. Many criminal law courses grapple with the question of why societies punish—rehabilitation being a theory almost every first-year law student learns. Rehabilitation is the idea that punishment should be used to help modify a person’s behavior so they willingly remain law-abiding in the future. Rehabilitation seeks to help people not only remain law-abiding but also live meaningful and successful lives. However, when it comes to criminal records, marijuana or otherwise, the criminal justice system itself often directly impedes an individual’s rehabilitation.
As a result, the consequences of criminal records harm both the individual and community. While Minnesota provides statutory avenues for expungement, they are insufficient. Activists can leverage broad support of marijuana legalization and expungement to garner additional support for broader expungement reform. Legislators should recognize the underlying public policy reasons for providing automatic marijuana expungement are the same reasons for providing automatic expungement for other criminal records. Therefore, legislatures like Minnesota should pass additional legislation expanding automatic expungement.
I. CRIMINAL RECORDS PREVENT REHABILITATION WHICH IN TURN HARMS THE OVERALL COMMUNITY
Criminal records—particularly from years ago and for low-level offenses such as misdemeanors—greatly impede an individual’s ability to move forward and live a productive and prosperous life. These barriers are often called the “collateral consequences” of a record. For example, employers, landlords, and colleges use background checks to exclude individuals with criminal records. Criminal records can also impact mortgage applications, adoptions, volunteer opportunities, and more. Even just an arrest leads to these harmful consequences. For example, a nursing school in Minnesota kicked out one fourth-year student after discovering she had an old record, even though a court previously dismissed the charge.
The collateral consequences of criminal records also negatively impact mental health. The stigma of a criminal record can lead to loneliness as members of society, including family and friends, may look at someone with a record differently. Additionally, consistent job rejections can cause feelings of inferiority and leave people feeling like they will never be able to move forward from their past. All of these factors take a toll on one’s mental health. Many argue the consequences of criminal records (on mental health, employment, housing, etc.) relegate these individuals “to permanent second-class status.”
Unfortunately, the harm of a criminal record is all too familiar for many Americans. Federal statistics suggest around sixty million Americans have a criminal record; one report estimates the number of Americans with a criminal record likely matches the number of Americans with college degrees. As a result, millions of Americans struggle with securing employment, housing, education, and economic stability or upward mobility. Further, because of biased policing and charging practices, the negative effects of a criminal record disproportionately harm communities of color. Thus, the collateral consequences of a criminal record further perpetuate and aggravate existing socioeconomic and racial inequalities.
These collateral consequences hurt not only individuals, but also the broader community. Since a criminal record is a barrier to employment, communities lose out on someone who could otherwise productively contribute to society through a job. While the U.S. experiences a labor shortage, the potential workers pool is intentionally kept even smaller by excluding individuals with minor, and often old, criminal records. Additionally, fields where criminal records are a particular barrier to employment—like education, health care, and social work—are the very professions that could benefit from a workforce that better reflects the diverse populations those professions serve.
The effects of criminal records on employment opportunities can also harm public safety by making criminal recidivism more likely. Individuals may be more likely to resort to crime if they cannot support themselves by other means. In contrast, people who get expungements often receive wage increases and are very unlikely to break the law again. Therefore, using criminal records to bar employment harms not only the individual with the record, but also the community.
Criminal records exist for public safety and knowledge; however, expungements do not undermine those goals. Critics argue expungements threaten public safety because public criminal records inform society of untrustworthy people and people likely to commit another crime. For example, employers often exclude people with records because they fear a negligence lawsuit if the individual reoffends on the job. While understandable that employers worry about their potential liability, research debunks the idea that people with criminal records are more likely to commit violence at work. Empirical evidence suggests individuals with expunged records pose extremely low crime risk, maybe even less than the general population. Therefore, expungements may not be a public safety risk, but actually a tool for public safety.
II. MINNESOTA’S CURRENT STATUTORY PROCESS FOR EXPUNGING CRIMINAL RECORDS
Minnesotans can expunge a record either through an executive pardon, inherent judicial expungement authority, or statutory expungement. This Post focuses on the two statutory expungement routes in Minnesota. First, an individual can take the traditional route and petition the court for a statutory expungement under Minn. Stat. § 609A. Second, the individual and prosecutor can agree to a prosecutor-led expungement (PLE).
Under the first route, if an individual qualifies for a statutory expungement they must file a petition, pay a filing fee (unless they receive a waiver for indigency), and attend a court hearing. For example, an individual convicted of a misdemeanor who has remained law-abiding at least two years since their sentence discharge qualifies for a statutory expungement under the law. However, individuals are not guaranteed an expungement even if they qualify, file a petition, and plead their case at their hearing. Judges have discretion and will grant an expungement only when the petitioner can establish by clear and convincing evidence that the benefit of expungement (or the burden the record poses in not expunging) outweighs public interest and safety.
The PLE route is more ideal as courts will seal a person’s criminal record without a petition and hearing. However, this route is not certain as the prosecutor must agree to seal the criminal record, which many offices may not do or may not have the capacity or resources to do. Further, this route assumes an individual knows they qualify for a statutory expungement which is often not the case.
III. BARRIERS INDIVIDUALS FACE DESPITE THE EXISTENCE OF EXPUNGEMENT AVENUES
Even in states like Minnesota, where a path to relief exists, the process is often complicated and intimidating, and thus insufficient at alleviating the harms caused by criminal records. The Minnesota Judicial Branch has a website page explaining the expungement process and providing resources for pro se individuals, as does the Minnesota Attorney General’s Office. While helpful, these resources do not eliminate the problems of navigating this complex system. For example, when filing a petition, individuals must serve the prosecutorial office and all other state and local government agencies whose records would be affected by an expungement. This is often the most difficult step, and incorrect service could result in the individual having to start the whole process over—or worse—being granted an expungement that is not recognized by the incorrectly-served government office.
As a result of the costs and complexities of petition processes like these, less than ten percent of eligible Americans successfully expunge their records. Most people do not get an expungement because they do not know they qualify, do not understand the process, or find it confusing. Automatic expungements like the kind in the current Cannabis Bill would fix these shortcomings of the current statutory process.
IV. LEGALIZING RECREATIONAL MARIJUANA CAN AID ACTIVISTS AND LEGISLATORS IN CALLING FOR AND ENACTING BROADER CRIMINAL JUSTICE REFORM
This year, as Minnesota considers providing automatic expungement for certain marijuana records as part of the Cannabis Bill, the legislature should also consider automatic expungement for a broader array of criminal records. As of April 2021, at least eleven states have automatic expungement laws for records beyond marijuana offenses, often called “Clean Slate” legislation. Clean Slate legislation is no stranger to Minnesota. Last year the legislature considered, but did not pass, the Clean Slate Act. Similar to the expungement provisions in the Cannabis Bill, the Clean Slate Act provided automatic expungement for certain offenses, like various misdemeanors, if the individual had not been convicted of a new offense during an applicable waiting period.
When states first began conversations about legalizing recreational marijuana the conversations rarely included a discussion about expunging the drug offenses. However, due to activists’ efforts legislators now frequently consider marijuana expungement when they consider legalization. Activists demand these legalization bills include expungement in order to address the wrongs and racism of the War on Drugs such as racial disparities in marijuana arrests. These calls for marijuana expungements also include discussions on how those records negatively impact employment and housing opportunities. Therefore, many of the rationales for expunging marijuana offenses are the same reasons activists argue for the automatic expungement of other offenses.
State legislatures should automatically expunge both marijuana records and other criminal records. Just as marijuana expungements are a racial justice issue, so are other criminal record expungements. Just as marijuana records prevent an individual from securing housing and employment, so do other criminal records. Yes, one difference between expunging marijuana records versus other criminal records is that marijuana would become legal whereas something like theft, for example, would still be a crime. However, that difference does not outweigh the reality that all the other public policy reasons for these expungements are the same.
Activists should leverage the broad support of marijuana legalization to pressure state legislatures to also consider broader criminal record reform. Legislators should recognize the overlap between the public policy considerations in favor of marijuana legalization and expungement and the public policy reasons for expungement reform of broader criminal records. After legalizing marijuana, Minnesota legislators should stay on a roll and provide automatic expungement for other criminal records.
 Graham Boyd, The Drug War Is the New Jim Crow, ACLU (July 2001), https://www.aclu.org/other/drug-war-new-jim-crow [https://perma.cc/8RJG-ZS53] (discussing the harms caused by the War on Drugs such as mass incarceration and felon disenfranchisement (to name a few) and arguing “[t]he war on drugs subjects the United States to much of the same harm, with much of the same economic and ideological underpinnings, as slavery itself”).
 Ryan Faircloth, ‘2023 Is the Year’: Minnesota Democrats Unveil Bill to Legalize Recreational Marijuana, Star Trib. (Jan. 5, 2023), https://www.startribune.com/2023-is-the-year-minnesota-democrats-unveil-bill-to-legalize-recreational-marijuana/600241007 [https://perma.cc/A8JC-2VV9].
 Expungement, as used in this Post, is defined as the sealing of a record so the record is removed from public view (but is not destroyed). Criminal Expungement, Minn. Jud. Branch, https://www.mncourts.gov/help-topics/criminal-expungement.aspx [https://perma.cc/XY5N-T7K2].
 H.R. 100, 93d Leg., 2023–2024 Reg. Sess. (Minn. 2023). For more discussion on what is, and is not, included in this expungement provision see Cedar Weyker, Expungement of Marijuana Convictions: Lessons Learned from Minnesota Prohibition, Minn. J.L. Ineq., https://lawandinequality.org/2023/02/07/expungement-of-marijuana-convictions-lessons-learned-from-minnesota-prohibition [https://perma.cc/TN8B-HPMK].
 Courtney Vinopal, As More States Legalize Marijuana, People with Drug Convictions Want Their Records Cleared, PBS News Hour (May 5, 2021), https://www.pbs.org/newshour/nation/as-more-states-legalize-marijuana-people-with-drug-convictions-want-their-records-cleared [https://perma.cc/8XCK-BGHJ].
 Collateral Consequences Res. Ctr. & Drug Enf’t & Pol’y Ctr. Staff, Marijuana Legalization and Expungement in Early 2021, Collateral Consequences Res. Ctr. (2021), https://ccresourcecenter.org/marijuana-legalization-and-expungement-in-early-2021 [https://perma.cc/HXC5-LHNS].
 See infra Part I.
 Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 Harv. L. Rev. 515, 558 (2021) (arguing first-year law students can rattle off the goals of punishment which includes rehabilitation).
 Merriam-Webster defines rehabilitation as “the process of restoring someone (such as a criminal) to a useful and constructive place in society.” Rehabilitation, Merriam-Webster, https://www.merriam-webster.com/dictionary/rehabilitation [https://perma.cc/S64A-SWFA].
 Michael S. Moore, Law and Psychiatry 234 (1984) (noting one rehabilitative ideal is to “not only make offenders nondangerous, but also make them flourishing, happy, and self-actualizing members of our society”).
 Infra Part I.
 See Ted Van Green, Americans Overwhelmingly Say Marijuana Should Be Legal for Medical or Recreational Use, PEW Rsch. Ctr. (Nov. 22, 2022), https://www.pewresearch.org/fact-tank/2022/11/22/americans-overwhelmingly-say-marijuana-should-be-legal-for-medical-or-recreational-use [https://perma.cc/NQ5L-DYHH] (finding eighty-eight percent of U.S. adults thought marijuana should be legal either recreationally or just for medical reasons). According to a 2022 survey by Data for Progress, seventy-four percent of all likely voters support expunging marijuana-related convictions. Suhan Kacholia, A Majority of Voters Support the Provisions of the SAFE Banking Act, Data for Progress (Nov. 28, 2022), https://www.dataforprogress.org/blog/2022/11/28/a-majority-of-voters-support-the-provisions-of-the-safe-banking-act [https://perma.cc/W328-J5T2]; Alexandra Hutzler, 70% in U.S. Support Expunging Marijuana Convictions After Vote to Decriminalize Weed: Poll, Newsweek (Dec. 8, 2020), https://www.newsweek.com/70-us-support-expunging-marijuana-convictions-after-vote-decriminalize-weed-poll-1553194 [https://perma.cc/Y9NF-ZNJJ].
 Rebecca Vallas, Sharon Dietrich, & Beth Avery, A Criminal Record Shouldn’t Be a Life Sentence to Poverty, Ctr. for Am. Progress (May 28, 2021), https://www.americanprogress.org/article/criminal-record-shouldnt-life-sentence-poverty-2 [https://perma.cc/CNX4-HE2L] (“[A]ny record—no matter how old or minor—can stand in the way of reentry, economic stability, and full participation in society.”); Alena Simon, Expanding the Extraordinary: Expungements in Minnesota, 39 Minn. J.L. Ineq. 411, 411 (2021).
 Vallas et al., supra note 13.
 Eric Westervelt & Barbara Brosher, Scrubbing the Past to Give Those with a Criminal Record a Second Chance, NPR (Feb. 19, 2019), https://www.npr.org/2019/02/19/692322738/scrubbing-the-past-to-give-those-with-a-criminal-record-a-second-chance [https://perma.cc/JNB2-2SAZ].
 Katy Read, Winona Woman Helps People Erase the Stigma of Past Mistakes, Star Trib. (Oct. 14, 2022), https://www.startribune.com/winona-woman-helps-people-erase-the-stigma-of-past-mistakes/600215698 [https://perma.cc/PRJ4-QR7U]. This nursing student had previously been charged with second-degree assault after an abusive ex-boyfriend broke into her house despite a restraining order. Id. He lunged at her, and she stabbed him causing minor injury. Id. The judge ultimately dismissed the case due to the restraining order. Id.; see also Kenny Lo, Expunging and Sealing Criminal Records, Ctr. for Am. Progress (Apr. 15, 2020), https://www.americanprogress.org/article/expunging-clearing-criminal-records [https://perma.cc/Y8AJ-5729] (“Even minor convictions that took place many years ago and arrests that did not result in a conviction are included in one’s criminal record, meaning that even when someone is legally innocent of a crime, they could face barriers associated with having a record.”).
 Listen: The Impact of a Criminal Record on Mental Health, Code for Am. (Aug. 10, 2021), https://codeforamerica.org/news/listen-the-impact-of-a-criminal-record-on-mental-health [https://perma.cc/4HSV-2MP2]. Not only can social stigma of a criminal record impact mental health, but some sociologists and criminologists argue the stigma can contribute to recidivism. J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2521 (2020).
 Listen: The Impact of a Criminal Record on Mental Health, supra note 17.
 Westervelt & Brosher, supra note 15; J.J. Prescott & Sonja B. Starr, Opinion, The Case for Expunging Criminal Records, N.Y. Times (Mar. 20, 2019), https://www.nytimes.com/2019/03/20/opinion/expunge-criminal-records.html [https://perma.cc/R7SB-9T4E].
 Westervelt & Brosher, supra note 15.
 Vallas et al., supra note 13.
 Amanda Agan & Sonja B. Starr, The Effect of Criminal Records on Access to Employment, 107 Am. Econ. Rev.: Papers & Procs. 560, 560 (2017).
 Workers with Criminal Records, SHRM (May 17, 2018), https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/second-chances.aspx [https://perma.cc/BKQ9-GNFZ] (“More than 80% of managers and two-thirds of HR professionals feel that the value workers with criminal records bring to the organization is as high as or higher than that of workers without records.”).
 Greg Iacurci, 64% of Unemployed Men in Their 30s Have Criminal Records, a Barrier to Landing a Job, CNBC (Feb. 22, 2022), https://www.cnbc.com/2022/02/22/64percent-of-unemployed-men-in-their-30s-have-criminal-records-a-barrier-to-landing-a-job.html [https://perma.cc/44FS-DZSD].
 Read, supra note 16.
 See Agan & Starr, supra note 25, at 560 (noting “job access for people with records can reduce criminal recidivism”).
 Prescott & Starr, supra note 17, at 2466–67.
 See Jon Geffen & Stefanie Letze, Chained to the Past: An Overview of Criminal Expungement Law in Minnesota—State v. Schultz, 31 Wm. Mitchell L. Rev. 1331, 1341 (2005).
 Margaret Colgate Love, Jenny Roberts & Wayne A. Logan, Collateral Consequences of Criminal Convictions: Law, Policy, and Practice § 6:23 (2021).
 Prescott & Starr, supra note 17, at 2514–15; Lo, supra note 16.
 Simon, supra note 13, at 432 (arguing expungements may increase public safety by providing individuals with more opportunities “for employment, housing, reintegration, and rehabilitation”).
 Id. at 418.
 Minn. Stat. § 609A.03 (2022).
 Minn. Stat. § 609A.02(3)(a)(3) (2022).
 § 609A.03(5).
 Minn. Stat. § 609A.025(a) (2022).
 Infra notes 46–47.
 Criminal Expungement, supra note 3.
 Expungement: Frequently Asked Questions, Off. of the Minn. Att’y Gen. Keith Ellison, https://www.ag.state.mn.us/Office/Expungement/FAQ.asp [https://perma.cc/LVC4-LBLJ].
 § 609A.03(3)(a).
 Expungement Steps, Minn. State L. Libr., https://mncourts.libguides.com/expungement [https://perma.cc/DW2W-LG5E].
 Vallas et al., supra note 13. Other barriers to expungement include court backlogs and the inability to take time off work for a hearing. Id.
 Prescott & Starr, supra note 21 (highlighting their empirical study which found ninety percent of individuals who are eligible for expungement in Michigan do not apply because “[m]ost people don’t know they can get an expungement, or don’t know how to do it, and don’t have lawyers to advise them”).
 See Prescott & Starr, supra note 17, at 2553.
 Kristian Hernández, More States Consider Automatic Criminal Record Expungement, PEW Trs., https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/05/25/more-states-consider-automatic-criminal-record-expungement [https://perma.cc/4XCV-7VVC] (May 25, 2021). Clean Slate legislation is legislation that has at least, “automation of record clearance; automatic clearance upon eligibility of the record . . . inclusion of arrest records; inclusion of misdemeanor records . . . .” and is strongly encouraged to include at least one felony record. Clean Slate in the States, Clean Slate, https://www.cleanslateinitiative.org/states [https://perma.cc/3BSU-7RU9].
 Tim Walker, ‘Clean Slate Act’ Would Offer Forgiveness for Certain Misdemeanor Offenses, Minn. House of Representatives (Mar. 11, 2022), https://www.house.mn.gov/SessionDaily/Story/17228 [https://perma.cc/N7F9-FJYX].
 H.R. 1152, 92d Leg., 2021–2022 Reg. Sess. (Minn. 2022).
 Vinopal, supra note 5.
 Id. The Minnesota Cannabis Bill is a perfect example of this development as well. Faircloth, supra note 2 (quoting Minnesota Senator Clare Oumou Verbeten who said the legislature “cannot legalize cannabis without expungement. This is a racial justice issue”).
 A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, ACLU (2020), https://www.aclu.org/report/tale-two-countries-racially-targeted-arrests-era-marijuana-reform [https://perma.cc/DDL4-7C5M]; Ryan Faircloth & Brooks Johnson, More than 60,000 of Minnesota’s Misdemeanor Marijuana Cases Could Be Expunged with Legalization, Star Trib. (Feb. 21, 2023), https://www.startribune.com/minnesotans-convicted-of-marijuana-crimes-could-see-their-records-cleared-with-legalization/600252510 [https://perma.cc/5DP8-MLKT].
 See Zaid Jilani, States That Have Decriminalized Marijuana Should Expunge Prior Pot Convictions, Activists Say, Intercept (Mar. 14, 2018), https://theintercept.com/2018/03/14/marijuana-legalization-expunge-convictions [https://perma.cc/74Q7-QNVQ] (noting activists argue “expunging marijuana-related misdemeanors would help remove barriers to seeking employment and housing”).
 Vinopal, supra note 5.
 Supra notes 24–25 and accompanying text.
 See supra Part I.
 Faircloth & Johnson, supra note 54 (“It simply isn’t fair to ruin a life based on actions that result in convictions but are subsequently legalized or decriminalized.”).
 See supra Part I.
 Supra note 12.