Dickstein: To list of racial disparity, add convictions

I still vividly recall a day during my first year as a judge when I took the bench for a misdemeanor pretrial calendar. All of the people in front of the bar were white -- the judge, prosecutors, defense attorneys and court staff. All of the defendants behind the bar were black. It was a stark reminder of the racial disparities that plague our community. I felt like a participant in an apartheid system.

Judge Lucy Wieland observed in these pages last spring that Minnesota has tolerated a cycle of racial disparity resulting in some of the worst gaps in the nation in employment, education and juvenile detention. She appealed for changes to eliminate the "gaps."

To her list of racial disparities, we should add the racial disparity in criminal convictions. Compared with the national average, people of color in Minnesota are more than twice as likely to obtain a criminal conviction. It isn't that people of color in Minnesota are more dishonest than elsewhere in our country; rather, there is something fundamentally wrong with the way our criminal justice system works.

To make matters worse, we broadly distribute criminal conviction data. Both the Minnesota Bureau of Criminal Apprehension (BCA) and the Minnesota Judicial Branch now post criminal records online. As a consequence, between 1996 and 2004, the percentage of employers performing criminal records checks jumped from just over 50 percent to more than 80 percent. The rate may be higher today.

The potential for long-term harm from these statistics should be self-evident. We in Minnesota have created an institutional underclass of people of color who are more likely to obtain a criminal record and less likely to get a job as a result. The consequence is a vicious, self-sustaining cycle. People in our community who are most in need of jobs are the most likely to obtain a criminal record. They are hobbled, as a result, in their efforts to get the job they need.

There are some simple steps we can take. First, we should adopt a diversion program for some first-time offenders of minor crimes. Such a program enables its participants to repay their victims and the community, and thereby avoid the conviction that would otherwise ruin their prospects for employment.

Our community is well-served when people charged with crimes like shoplifting are reformed rather than punished. It serves us ill if we spend large sums of money to fully prosecute first-time minor offenders and saddle people with criminal records if they learn their lesson and don't offend again. There's no need to spend the enormous sums we do for the services of judges, deputies, court reporters, clerks, probation officers, prosecutors and public defenders when there are more responsible means to address the wrongs involved.

Don't misunderstand -- people shouldn't get away with crimes like theft. They should have to admit their crime and repay their victims. Offenders may also have to perform community service like picking up trash along our streets and highways.

But we should leave room for the twin virtues of mercy and accountability, the foundations for a diversion program in Hennepin County called Operation De Novo. The program gives those accused of some nonviolent first-time felony offenses the opportunity to get treatment and perform community service rather than endure criminal prosecution. The program simultaneously gives some offenders a chance at redemption, while demanding restitution and accountability.

Common sense suggests that a diversion program available to some accused felons should also be available to those accused of less serious crimes. It's absurd to permit someone to avoid a criminal record if they pass $3,000 worth of bad checks but deny the same advantage to an 18-year-old whose misdemeanor crime is taking some tip money out of the cash register jar at a coffee shop.

There's a second way we can begin to address the disproportionate conviction rate of people of color in our state. We must make it easier for deserving individuals to obtain expungement of their criminal records by giving courts the authority to seal criminal records for those who are the most deserving.

The problem is that under current practice courts can seal their own records, but the BCA can publish the very same information online. Courts should be given the power to seal both court and agency records.

We must change our system so the phrase "criminal justice" continues to ring true for all citizens in our state. Mayors and prosecutors in our cities need to take responsibility for creating alternatives to the prosecution of some minor offenses, and the Legislature and courts must also be a part of racial healing, or risk erosion of the regard which is central to the public's respect for our justice system.

Mel Dickstein is a Hennepin County district judge.