Expungement: A moral imperative for New York’s criminal justice reform

Criminal records are not a proxy for assessing who a person fully is.

With very limited exclusions, criminal convictions are a matter of public record in New York State forever, even though in most cases they tell us nothing about a person, including whether that person is likely to be “risky” or “dangerous.”  Criminal records don’t reliably predict these things.  Research shows that, after a short period of time, people with conviction histories are no more likely than people without them to be arrested for new crimes.1 A study done by New York’s own Division of Criminal Justice Services found that, of the 24,605 individuals released from state prison in 2010, only 9% had returned to prison for new criminal convictions by 2013.[2]  And people who hold jobs are even less likely to do so – studies show that employed individuals are 20% less likely to return to prison than those who are unemployed. 

Rap sheets have many mistakes.  Commercial background checks have many more. This matters.

 Approximately 45% of rap sheets have at least one error and nationally, only 45% of arrest dispositions are reported. In addition, private background check companies (estimates are that more than 1,500 of them do business in the U.S.)  add more errors to flawed data.  Both because they are replete with errors and because the records they present are not predictive or instructive, employers and others should by now know not to rely on them.  But recent polling shows that more than 80% of employers rely on background checks in the hiring process.

Improving Sealing.

In April 2017, the New York State legislature passed Criminal Procedure Law §160.69as part of a package of legislation known as Raise the Age.  C.P.L. §160.59, made effective in October 2017, allows for individuals who have not been convicted of a crime in 10 years to request that certain convictions be sealed. While the law is a step in the right direction, more must be done to remove barriers that are borne by those most impacted by the criminal justice system in our state. Because the legislation is narrowly drafted, an overwhelming number of New Yorkers with past criminal systems involvement cannot benefit from its protections.  Reentry organizations and legal services providers field calls on a weekly basis from individuals anxious to take advantage of the new law.  Most are ineligible to apply, however, in large part because those who have had more than two criminal convictions in their lifetimes are excluded from the law’s coverage. No studies were conducted prior to the law’s passage, and initial estimates of how many would be eligible – in the hundreds of thousands – seem belied by statistics on how many motions have been made and granted under this new law:  346 to date (May 2018).

Eligibility expansion is necessary.  First, there should be no bar to applying based on lifetime number of convictions.  There is no reason to believe that individuals with more than two criminal convictions are less worthy of the laws protections than others.  And the courts have not been inundated with applications.   Second, the current 10-year waiting period should be significantly reduced.  Studies show desistence from criminal activity five years after commission of a crime. Earlier versions of the bill that became C.P.L. §160.59 set the wait period at this level. Significantly, while C.P.L. §160.59 was passed as part of Raise the Age legislation, young people can’t take advantage of it due to the current 10-year wait.  Finally, the law should not exclude violent felony convictions from sealing protections. Recidivism statistics do not support this current exclusion. In addition, we should explore making sealing an administrative process that does not require judicial decision-making.  This format has worked well in states such as Massachusetts and is being adopted in other states such as Pennsylvania.

A Pathway to Expungement.

While sealing is a great first step, and current laws should be improved so that it benefits more people, ultimately our legislators must enact expungement legislation, so that criminal punishment is no longer permanent in New York State as conversations have become more prevalent around the legalization of marijuana, many have begun to discuss how records related to marijuana should be expunged, but the conversation must be more broad. The disproportionate racial effect of the criminal justice system is documented and clear. The Center for American Progress reports that “while people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned.” In relation to whites, “blacks have almost 5 times the risk of being jailed.” Nationally African Americans and Latinos are involved in the criminal justice system in numbers disproportionate to their representation in the general population. Because of this, Expungement is a clear legal remedy and way forward to help eliminate the consequences faced by those who have a criminal record. Because our state does not allow expungement of any type of conviction, New Yorkers with criminal records often face lifelong barriers to employment, education, housing, and civic involvement, no matter how much they have done to create positive change in their lives. These barriers don’t just harm people with convictions and their families; they also reduce the state’s workforce, keeping the entire New York economy from reaching its full potential.

The legislation we are fighting for would:

  • Make expungement relief available to as many people as possible, including those with multiple convictions and those with “violent” convictions;

  • Make the passage of a specified amount of time since a person’s most recent conviction the only eligibility requirement; and

  • ·Make applying for expungement an administrative process, where expungement is automatically granted as long as the eligibility requirements are met;

[1] Alfred Blumstein, Kiminori Nakamura, Redemption in the Presence of Widespread Criminal Background Checks, Criminology , An Interdisciplinary Journal, 2009, 47(2), 327-359

[2] Aaron Yelowich, Christopher Bolinger, Prison-to-Work: The Benefits of Intensive Job-Search Assistance for Former Inmates, Manhattan Institute 96 March 2015 (finding that training designed to quickly place individuals in jobs significantly reduces recidivism, particularly among individuals with non-violent convictions).

[3] Matthew DuRose, Alexia Cooper, Howard Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns From 2005 to 2010 – Update, Bureau of Justice Statistics, https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986

[4] Matthew DuRose, Alexia Cooper, Howard Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns From 2005 to 2010 – Update, Bureau of Justice Statistics, https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986