State Expungement Policy

Introduction

The social consequences of a criminal record can lead to the denial of an individual's right to civic participation. Life, subsequent to an arrest, is permanently altered. Regardless of whether an individual has been convicted, an arrest or citation typically persists on a criminal record. Therefore, even a person who has had the charges against them dropped may be subject to a degree of social ostracism and a de facto public finding of guilt. Some states permit individuals who are arrested, but not convicted, to expunge their arrest records. Others permit some convicts to apply for expungements after time has passed from the completion of their sentences.

Exemplary Law: Minnesota

In 2014, Minnesota updated its criminal records expungement laws. The new law expanded the availability of expungement and addressed novel issues such as the responsibility of data mining companies to observe expungements. The law was updated in 2018 to allow additional categories of convictions to be expunged. Its strong provisions include:

1. Convictions for misdemeanors and specific low-level, non violent felonies are eligible for expungement (Minn. Stat. § 609A.02);
2. Individuals convicted of sexual or domestic abuse offenses are eligible for expungement (Minn. Stat. § 609A.02); and
3. Requires private data mining companies to promptly delete a criminal record it knows to be sealed, expunged, or the subject of a pardon (Minn. Stat. § 332.70(3a)).

Unique among state expungement law, Minnesota’s statute provides a private right of action for individuals when a government entity "knowingly improperly opens or exchanges the expunged record." (Minn. Stat. § 609A.04).

What's missing from Minnesota's Law?

Expungement remains an extraordinary remedy in Minnesota, "to be granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with the disadvantages to the public and public safety of: (1) sealing the record; and (2) burdening the court and public authorities to issue, enforce, and monitor an expungement order." Minn. Stat. § 609A.03(5). This provision gives the courts the discretion to expunge some records while leaving others unsealed.

Additional Resources

• EPIC: Expungement
• EPIC: G.D. v. Kenny, concerning preserving the value of expungement.
• National Association of Criminal Defense Lawyers Restoration of Rights Project, 50-State Comparison Judicial Expungement, Sealing, and Set-aside (July 2016)
• Collateral Consequences Resource Center, State Specific Guides to Pardon, Sealing, and Expungement
• Papillon Foundation, State Specific Criminal Record Resources
• National Conference of State Legislatures (NCSL), Ex-Offender Employment Opportunities (July 2011)
• Slate: There’s No Such Thing as Expunging a Criminal Record Anymore (2019)
• Restoration of Rights Project

Pending Legislation