Expunge yourself

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March 7, 2005 // UPDATED 1:52 pm - April 26, 2007
By: Jeremy Stratton
Jeremy Stratton

More criminals - and some who were merely arrested - are getting their records sealed

"Hallelujah!" said Desiree Harrell as she exited the courtroom of Hennepin County District Judge Myron S. Greenberg, who had just sealed two charges on her criminal record from public view - one a felony - in an outcome known as expungement.

Harrell drives taxi while she studies human services at Downtown's Minneapolis Technical and Community College (MCTC) full time.

"That's why I wanted to [have the offenses expunged] - because I'm not going to be able to do anything in the human services field with a criminal background," Harrell said.

Her children were another reason, she said. "I wanted to show them that you might make mistakes, but you can change."

Harrell and her friend Helen Fountain - who came to have her own charges cleared - began the expungement process at Hennepin County's Self-Help Service Center. Tucked in a second-floor corner of the Hennepin County Government Center, 300 S. 6th St., staff and volunteer attorneys lead people through the complicated and time-consuming process.

Expungement seals arrests, charges and even convictions so the general public - including potential employers, landlords and others doing background checks - can't read them.

Many people seek expungement because they have been denied jobs or housing after criminal background checks, said Hennepin County Staff Attorney Debra Swaden. She is the first point of contact for many would-be expunges, providing assistance, not advice, on how to navigate through the process and access the courts.

Harrell said she has been turned down for at least 10 jobs because of her record, which has been clean since 2000 and includes only the two now-sealed charges.

Fountain had sealed a transaction-card fraud charge, which was dismissed to a program for first-time offenders, as well as a gross misdemeanor drug charge, for which she paid a fine.

Although her record has been clean since 1996, Fountain was unable to co-sign on her daughter's first apartment after a background check, and was let go by Northwest Airlines in 2000 after working for four weeks as a baggage handler while they processed her background check.

"If it's in the past, give me a chance to show that I'm not that person anymore," said Harrell, who had a similar experience at a bank.

The process

Sealing one's records is not a simple affair. There's a lot of paperwork to fill out, much of it written in statutory language that might frustrate most literate English-speakers. Those who cannot read English - or any language at all - could find it impossible to wade through themselves.

"People not represented by counsel don't usually have a clue, unless someone is there to guide them," Swaden said.

Lee Lathan is just beginning the process. The 53-year-old is seeking expungement of more than a dozen arrests from 1989 to 1999, including some convictions for 5th-degree domestic assault and at least one felony conviction.

Lathan, too, has found it difficult to find work. He lost his dishwashing job last May. Since then, he said, he has filled out more than 10 applications, with no luck; now, his unemployment is running out.

"It's the first time in 33 years I've been without work," said Lathan, who said he was once a youth worker at Pillsbury Waite Neighborhood Services.

Case by case, Swaden reviewed with Lathan's criminal history with him, looking at each charge, level of offense, and what happened in the related court appearance to help him prepare for his eventual court date.

That date is more than two months away. Before then, Lathan will have to send petitions, notifications and orders to at least seven state, county and city agencies, along with copies of his offenses.

Lathan must do his own writing, and the copying and postage alone could run the unemployed man more than $100.

Swaden said many people she sees who are homeless or on assistance must wait to save up for the expense. The court charges $247 to file for expungement; those on assistance may have that fee waived.

Expungements account for 50 percent of the self-help center's workload, according to Swaden. The center also assists with court processes such as name changes, filing or answering civil lawsuits, vacating judgments and car title issues.

Swaden sees three categories of expungement cases - all of which can be on one's record.

About 5 percent are for arrests without charges. Even if no charges were filed, an arrest can be enough to scare off employers and landlords.

Over half of expungement cases involve charges that were dismissed in court, often because the individual entered a "pre-trial diversion program." Those include treatment and diversion program that dismiss first-offense charges in lieu of education, counseling and/oor performing community service. (Fountain fulfilled her obligation through work at her church, she said.)

The remaining cases, about 40 percent, deal with felony and misdemeanor convictions.

Swaden noted that expungement requests have soared because technology makes background checks easier to access.

New laws also drive demand. Hennepin County District Judge Kevin S. Burke recalled how a new law prohibiting ex-cons from selling pulltabs sent old men shuffling into court in droves for expungement of 50-year-old felonies.

"One guy had done a burglary [in his youth], he was 70 years old," said Burke. "He couldn't even climb the stairs."

Are you expunge-worthy?

Judge Burke said the vast majority of first-time property offenses and dismissed charges are expunged. State and federal statutes mandate expungement in some other particular cases, such as low-level drug charges, very old offenses, and cases in which the individual was younger than 21 and stayed out of trouble until they were 25.

Agencies petitioned for expungement can object.

"Was it a crime against person?" Chief Deputy Hennepin County Attorney Pete Cahill asked rhetorically. "For example, we don't think it's appropriate to expunge domestic assault cases."

Burke agreed. "Somebody got hurt there," he said.

Charges in such cases become more severe after the second and third offenses. "If it's sealed, we don't know about priors," said Cahill. "It's very important to keep prior records out in public and open to prosecutors."

Cahill said that once a judge grants an expungement, the Hennepin County Attorney's Office rarely appeals "if the judge decides that it's fair and just to grant expungements."

Burke said a recent state Court of Appeals decision made it more difficult for district court judges to seal executive branch records. He implied that he is not likely to grant expungements that would invite appeals along separation of powers issue.

"What good is it to seal [district] court records if they're still open at the state level?" he asked. "If you have prior felonies and convictions, you're highly unlikely to get expungement in today's legal climate."

As an example, Burke recounted the case of a reformed prostitute who had "completely turned her life around." Because of statutory requirements, he was unable to expunge her record.

"At some point, society has to figure out a way to deal with forgiveness," Burke wrote in his order of denial.

Gun charges are rarely expunged, and if you're on active probation, forget it.

After her court appearance, Harrell was ready to get on with her life. She rushed off to retrieve her car from the parking ramp, where Fountain had informed her she'd pay a whopping $16.50 for little more than two hours of parking.

"It doesn't matter, because I got my record expunged," said Harrell as she headed to the elevators.