As the 2020 legislative session approaches, many New Yorkers are wondering how legislators can follow up on 2019’s landmark efforts. Last session, vital new protections for tenants, voting reform and important criminal justice protections were written into law. And while marijuana decriminalization legislation was less than advocates of legalization had hoped for, the law included an important new provision directing state agencies to automatically expunge records of convictions for conduct now decriminalized.
It’s time to take the automatic expungement conversation further, and extend the process to cover other criminal convictions. The need is real: one in seven New Yorkers has at least one criminal conviction on their record. A criminal conviction is a life-altering event. Doors that were once open – to jobs, a place to live, a license to practice a trade, to the right to serve on a jury or in some cases even the right to vote – are closed. Your ability to provide for yourself and your family: in many cases that’s changed forever. And the burden is carried mostly by black and Latinx New Yorkers, many of whom fell victim to our shameful past decades of racially-biased policing and overincarceration.
The need is also real because New York does very little – legislatively and otherwise – to allow people to move beyond past mistakes. In this we lag behind other states like Pennsylvania and even Utah. Apart from marijuana-related expungement and a limited sealing statute, C.P.L. § 160.59, there is very little relief for New Yorkers with conviction histories. In other words, in most cases your felony and misdemeanor record continues to exist in perpetuity, available for any member of the public to see. This is true no matter what good works you do or achievements you accomplish after the conviction and paying your debt to society. And this is true even though research shows that at a certain point criminal records are not a predictor of future criminal justice involvement.
The reasons that C.P.L. §160.59, our sealing statute, hasn’t been more impactful are relatively straightforward. First, the eligibility requirements are too stringent. Limiting relief to individuals who have no more than two convictions in their entire lifetime fails to account for the over-policing and prosecuting of poor communities of color, or for the ways in which poverty, addiction, and mental illness are often criminalized in this state. The simple fact of having more than two convictions in their lifetime should in no way render someone unworthy of relief from perpetual punishment, but right now, it does.
Secondly, the ten-year waiting period to apply is far too long. In that time, a person’s life can be irrevocably altered by the burdens imposed by a criminal record. One study estimates that the unemployment rate for formerly incarcerated individuals is over 27 percent. Those who can find work are limited to positions and salaries well below their potential. Many people have no choice but to accept the reduced horizon of opportunity imposed by their conviction history. Lastly, because C.P.L. §160.59 is an application-based rather than automatic process, it is overly burdensome on both the applicant and the court system.
We must change this situation. What New York needs is state legislation that automatically expunges criminal conviction histories, which predict nothing other than a lifetime of second-class status to their holders. New York can do this, and that is why activists, advocates and organizers are coming together behind the new campaign, Clean Slate NY. Organizations leading the new initiative include the Community Service Society of New York, the Legal Action Center, VOCAL NY, New Yorkers United for Justice, The Legal Aid Society and more. Our message is clear: automatic expungement of eligible convictions is essential, a matter of basic human decency as well as a tool to help hundreds of thousands of New Yorkers move toward full participation in community and the economy. Placing the onus on individuals to apply to seal records, as our law now does, won’t cut it.
The time to act is now. In his 2018 State of the State Address, Governor Cuomo highlighted the unfairness of our two-tiered criminal-legal system, stating, “the fact is we have had two criminal justice systems: one for the wealthy and the well off, and one for everyone else.” And with Congress’ passage of the First Step Act, along with significant state legislation in play across the nation, the on-going effects of encounters with punishment – particularly experienced by communities of color, poor and working people – are increasingly coming into focus. Nationwide, there is emerging agreement that people with conviction histories should be able to clear their records.
If our governor and legislature plan to promote fair and meaningful criminal justice reform in New York that builds an equitable justice system, that plan must include more than our current hard-to-follow law. Rather, a truly equitable and forward-looking remedy would be automatic expungement, building on decriminalization legislation we already have in place. When legislators come back in January, we urge them to introduce and pass legislation doing just this. Criminal records expungement is the decent and just thing to do. New York must get with the Clean Slate program.
David R. Jones, Esq., is President and CEO of the Community Service Society of New York (CSS), the leading voice on behalf of low-income New Yorkers for more than 170 years. The views expressed in this column are solely those of the writer. The Urban Agenda is available on CSS’s website: www.cssny.org.