By Jon P. Erickson and Shawn D. Stuckey
Summer 2007 BGS In Brief Newsletter
When a person is convicted of a crime, they are subject to the direct and collateral effects of a conviction. But what happens when a person is arrested for an offense and the case is either not charged, or the person is found not guilty? Most people think that the arrest record is either thrown out or sealed. Many are unaware that anyone can have access to that information for years to come. Some of whom could use this information to make determinations of capability for employment and housing. Others who posses the capacity, and many times do, to make the person’s arrest known to the world. Unless actions are taken now by the person who is the subject of the arrest record, a person who was arrested many years ago may still be denied employment, housing, or have his name published for all to see.
Collateral effects are invisible, civil punishments attached to any crime and arise immediately following an arrest. In the past, the public could not easily access criminal history records. Today, technology has greatly increased the public’s accessibility to criminal records. Employers, landlords, newspapers, data harvesters, and any member of the public, have access to almost every single arrest record. The only ones that are protected are those that are sealed and/or removed completely. Thankfully, this is an option available and may be accomplished with the assistance of a capable and knowledgeable attorney.
I. What Happens to One’s Arrest Information?
After one is arrested, a record of his arrest along with any other identifying information is kept at the arresting agency and also reported to Minnesota’s Bureau of Criminal Apprehension (BCA). The BCA then keeps a record on file for that person. Any member of the community may go online, go to the BCA, or any authorized dissemination terminal and receive conviction data on an individual. Public accessibility of conviction information is arguably justifiable considering criminal and civil liability associated with due diligence requirements. However, not all who are arrested are guilty. In fact, statistics show that many people arrested are not ultimately convicted. Nevertheless, any member of the public may contact the arresting agency and receive any arrest information on an individual who has been arrested. The arrest information includes, but is not limited to: name, age, address, nature of the charge, time and place of arrest, arresting agency, and information as to whether an individual has been in incarcerated and the place of the incarceration.
Additionally, information gatherers better known as “data harvesters” or “data verifiers”have complete access to a person’s arrest information. Data harvesters are people who go to dissemination terminals in courthouses, law enforcement centers or the BCA, and gather information on any individual who has been arrested in that particular jurisdiction. Those individuals then sell that bulk information to anyone who is willing to buy. The legislature has gone to considerable means to make arrest information electronically inaccessible. This, however, astronomically increases the value of the data harvesters.
Furthermore, newspapers have access to the arrested individual’s information regardless of the outcome of the charge. In other words, someone whose arrest was dismissed many years ago, may still have his arrest information reported by newspapers. Since the disposition of that charge is many times unknown, the newspapers may neglect to report that the charge was ultimately thrown out.
II. What are the Collateral Effects of Arrest?
An arrest results in two types of consequences: direct and collateral. Direct consequences flow directly from a conviction (e.d. the sentence and/or fine). In contrast, collateral consequences, better known as collateral effects, are “civil and regulatory in nature and are imposed in the interest of public safety.” Collateral effects have a legally binding result on arrested individuals in Minnesota.
Collateral effects of arrest operate to hinder the progress of citizens in Minnesota through many ways; but most importantly, the denial of jobs and housing.Over eighty percent of large employers use criminal history checks in the hiring process. Over sixty percent of employers indicate that they probably would not or definitely would not hire someone with a criminal record, including those with only an arrest record containing no conviction.
Employers are not supposed to use arrest information alone to disqualify individuals; however, the reality is that many of them do. If one is arrested and has not taken efforts to expunge her arrest data, there is a highly significant chance that she will be denied employment.
Similarly, private landlords perform background checks which many times unfairly disqualify an individual. The landlord may refuse to rent the apartment or house to someone who was justifiably or unjustifiably arrested for a crime and failed to seek the proper corrective measures through an attorney.
Additionally, applications which ask if an individual has ever been arrested for a crime may be a hindrance to an individual with an arrest record. Most employers and landlords actually disqualify more individuals for reasons relating to truthfulness and “moral turpitude,” when the individuals refuse to reveal the information when asked. If one seeks the advice of a qualified attorney, one’s arrest information can potentially be sealed and/or removed so that the person is not forced to hide this information. The person will lawfully be able to deny the arrest.
III. What Can Be Done to Protect Information ?
An individual who would like to seal, and in many cases, completely remove his arrest information from the public may do so with a knowledgeable attorney. First, decide if your arrest was dismissed before it was charged. If all charges were (1) Dismissed prior to determination of probable cause; or (2) The prosecuting authority declined to file any charges and a grand jury did not return an indictment and you ere not convicted of felony or gross misdemeanor within a ten year period immediately prior to the arrest, then a person need only submit a request for the return of their records to the arresting agency.
Second, if all charges were dismissed, but after determination of probable cause and after charges were filed, than a person must request an expungement. Expungement is the removal of a conviction from a person’s criminal record. An expungement only seals a person’ criminal record; it does not destroy it.
Another mechanism available to protect arrest information is judicial pardon. Although the constitutional and statutory authority for Minnesota pardons is limited to granting clemency fo “convictions,’ they can, in rare cases, address arrest information.
With the increase of accessibility to criminal history records through the advent of technology, and the decrease of protection of those same records through recent laws and court decisions; an arrest record is extremely accessible. Our criminal justice system is supposed to operate to give individuals an chance at rehabilitation, not punish people forever for mistakes. If anyone has ever been arrested, or cards for someone who has ever been arrested, the best option is to consult an attorney immediately to ensure that person’ s information and privacy will be protected. This is why it is important that you act to seal your information today!