A ‘right to be free from excessive punishment’

Last week, I was surprised to hear that a brush fire in the northern suburbs would result in felony charges against the teenagers who apparently caused it.

It’s not that I don’t think teenagers should be held responsible for their stupid deeds, it’s just that getting a felony on your record in Minnesota can ruin a life for a good long time. This is not a forgiving state in such matters, as an afternoon at a pardons board hearing reveals twice a year. A lot of good people who made stupid mistakes pay for it, often beyond reasonable limits.

Today, the Minnesota Court of Appeals issued a key decision that — at least for now — could give judges more authority to order expungement not only of court records, but of records held by the Bureau of Criminal Apprehension and the state’s executive branch.

“An individual’s fundamental rights to obtain employment and housing are affected by a criminal record, as is an individual’s right to be free from excessive punishment,” the Court of Appeals said in ruling in the case of a then- 20-year old woman in Worthington, who changed a prescription for Robitussin cold syrup in February 2006 from 200 milliliters to 400 milliliters. That’s about 40 teaspoons.

She said she did it because she couldn’t afford another trip to the doctor for another prescription if the original prescription didn’t work. She was the single mother of four children.

The woman, who is not identified, was charged with two felonies and the district court stayed imposition of a sentence, placed her on three years’ probation, and ordered her to pay an $879 fine. She was discharged from probation a year early and her remaining fine was forgiven. The original charge was reduced to a misdemeanor.

She’s been trying since then to get her felony charge expunged. The court disallowed her first attempt in 2008 because not enough time had passed. She tried again in January 2011, documenting job dismissals because of the conviction.

She presented evidence that she was on the dean’s list of a community college, and gave the court a letter from an employer in her support. The Rock Nobles Community Corrections director also submitted a letter not opposing expungement.

But the Nobles County Attorney “objected to the petition on the basis that the stated reason for the expungement, attainment of employment goals, is not a valid reason for expungement, that expungement is not essential to the judiciary’s core functions, and that the district court lacked the authority to order expungement of records outside the judicial branch,” the Court of Appeals wrote.

The district court ordered the expungement:


It is this Court’s opinion that [respondent’s] one-time mistake of altering a minor cold medicine prescription in light of [respondent’s] successful completion of probation and subsequent reduced offense level, combined with her otherwise clean criminal history and strong showing of her rehabilitative efforts does not justify the [Bureau of Criminal Apprehension] to hinder [respondent’s] employment progress for 15 years . . . The District Court has the inherent judicial authority to seal executive branch records and creates a meaningful remedy in cases such as this one.

It might seem like a common-sense decision with a side order of compassion. But the Nobles County Attorney enlisted Minnesota Attorney General Lori Swanson to prevent the widening of expungement authority by the state’s judges.

They appealed to the Minnesota Court of Appeals, which today sided with the district court and the woman.

“As compared to the range of other possible criminal offenses, respondent’s offense was not serious,” Judge Roger Klaphake wrote. “Although appellant stresses that respondent was charged with a felony offense, that offense was reduced by operation of law to a misdemeanor, involved no violence or victims, and the circumstances surrounding the offense suggest that it was not serious.”

Klaphake documented the difficulty a felony record can cause:


In respondent’s sworn statement attached to her expungement petition, she details her job history, including that she was “fired from H.S.I. after the background check showed [her] felony charges from 2006,” she was “turned down at numerous jobs that required background checks,” and she eventually accepted a job as a grocery store cashier because “it didn’t require a background check.” Respondent listed the employers by whom she was denied employment after required background checks, including HyVee, Polaris, Rosenbloom, Spirit Lake Hospital, Windom Hospital, and Jackson County School District. She also stated that she “lost a job at Lakefield Middle School on the Maintenance crew after a background check” and that she “took four classes to become a coach, but was told not to apply for [her] license, because of [her] criminal background.”

We agree with the district court that respondent has sufficiently demonstrated difficulties in securing employment. She was fired from jobs, was turned down from jobs, and was told not to pursue jobs because of her criminal background. Appellant appears to suggest that “difficulties” in securing employment should be interpreted to mean “impossibility” in securing employment, but that is not a reasonable interpretation of the word “difficulty.”

Judge Klaphake also seemed concerned that the executive branch is storing more criminal data and it’s easier for the public to get:


This blossoming in the area of criminal records preservation and dissemination by the executive branch has greatly impacted both the inherent authority of the judiciary and the individual rights of the expungement petitioner. As to the effect on the judiciary, the separation of powers doctrine “is grounded in judicial self-preservation” and “can be neither augmented nor diminished by legislative acts.”

By permitting the executive branch to maintain and disseminate criminal records that the judiciary has both created and expunged, the authority of the judiciary to perform its judicial function is curtailed. By restricting a district court to an expungement order that is limited to criminal records maintained by the judiciary, when the executive branch maintains and broadly disseminates those same records, the judiciary has, in effect, ceded its role of offering a true remedy to those entitled to it or determining fair punishment of offenders.

The case is likely heading to the Minnesota Supreme Court. As of this afternoon, the woman’s felony charge is still on her record, her attorney told me this afternoon. He said his client is “ecstatic” about the ruling, which he said surprised him, too. He had expected to lose.

Here’s the Court of Appeals’ full opinion in the case.

  • Mark Gisleson

    The Nobles County Attorney is Kathleen Kusz. For the life of me I do not know why you did not include her name in your post.

    I have no idea what her party affiliation is, but I would love to know more about this attorney and her “no forgiveness” scorched earth approach to penology.

    You also appear to be saying that State A.G. Lori Swanson fought this as well. If that’s the case, I’m having a lot of trouble figuring out why I would ever vote for Swanson again.

  • Bob Collins

    That is correct. AG Swanson was a party to the appeal.

  • Jim Shapiro

    Dick: “The first thing we do, let’s kill all the lawyers.”

    (Henry The Sixth, Part 2 Act 4, scene 2)

  • David

    This will have to go to Mn Supreme Court, otherwise so many 1 time DWIs to be expunged.

  • Minnwhaler

    To me the most important phrase in all of the above is: “an individual’s right to be free from excessive punishment”

    Clearly, lifelong punishment is excessive punishment for an offense that is on the books as a misdemeanor. Rehabilitation is nearly impossible if all doors to opportunity are locked. I hope that this record is permanently expunged soon and that this case will lead to a healthier system of reform in Minnesota.

  • http://backgroundcriminalrecord.org/ Hasan Taimur

    All the base of role of punishment should be the same and in this fact i would like to say he should appeal to supreme court.