Miranda Janssen and Erin Powers.
Miranda Janssen (l) and Erin Powers have partnered to craft a vacatur law for Minnesota.

Law Students Advocate for a Vacatur Law in Minnesota

Third-year law student Erin Powers was working as a clerk at a law firm when she was asked to review the case of a woman who had multiple DWI charges. Powers was told to write a dispositional departure memo outlining for the court the circumstances that had led to the charges in an effort to help the woman avoid jail time or receive a lesser sentence.

As she prepared the memo, Powers learned that the woman was a victim of sex trafficking and that the DWI charges stemmed from her drug addiction, which started when she was given pills by her trafficker. Powers also became aware of and frustrated by what she felt was an injustice in the woman’s situation.

“I found issue with the fact that she was being charged with felony level DWIs when she was a victim of a crime herself,” Powers said. “And the fact that she had a criminal record would have long-lasting effects.”

People who have been charged with criminal offenses experience challenges when seeking employment, education, housing, loans and other services. For a victim of sex trafficking, who has beaten the odds and broken free from their perpetrator, a criminal record creates barriers to rebuilding their life.

Advocates say it is not uncommon for those who escape human trafficking to have a criminal record. It is for this reason that states have enacted vacatur laws which permit courts to remove from an individual's record convictions for prostitution-related offenses and other nonviolent crimes.

What Powers learned while working on the DWI case, however, was that Minnesota is one of 15 states that does not have a vacatur law … so she decided to write one. Powers has partnered with fellow law student 3L Miranda Janssen to craft a vacatur law for Minnesota, with oversight from Professor Mark Osler.

“The collateral consequences for those who are victim-survivors of trafficking are so severe and resources are so slim that it leaves people behind,” Janssen said. “I truly believe that our society and more specifically our criminal justice system is failing those who are victim-survivors of trafficking, and something needs to change.”

In 2015, Minnesota legislators passed a law that created a process for criminal expungement and allows judges to seal records from criminal court cases. Once sealed, only law enforcement agencies, FBI, immigration and other public officials can still see the records for certain purposes.

Powers believes that expungement is not enough in sex trafficking cases because the records can still be accessed and therefore do not completely erase the collateral consequences. For example, in her client’s DWI case, expungement would seal the criminal conviction, but it would still come up at the Department of Motor Vehicles and could affect her ability to obtain a driver's license now that she is sober. For others, it could impact their employment if their job involved driving. Further, expungement cannot prevent a sex trafficking survivor from deportation because prostitution can be seen as a sign of moral turpitude.

“Vacatur provisions are the most helpful for survivors,” Powers said. “They are broader and do not require official documentation to certify that someone is a victim, nor do they require rehabilitation, so they have fewer requirements than the expungement process, and they can remove the judicial discretion that is present in expungements.”

A vacatur law in Minnesota was recommended by government leaders in recent history. Passing a vacatur statute was part of the Minnesota Department of Health’s statewide sex trafficking victim-survivors strategic plan released in January 2019. The plan was developed in consultation with the Minnesota Department of Human Services and the Office of Justice Programs in the Minnesota Department of Public Safety.

Powers and Janssen recently completed a draft of their vacatur statute and are working to refine the language before approaching state lawmakers to garner interest and begin a grassroots effort to have it passed into law.

“This has been the most eye-opening project that I have worked on, and I am very grateful to be able to work with Miranda on it,” Powers said. “Professor Osler has been a huge help to us as he has shared his wisdom on how to navigate these proposals.”