Expansive NY Bill To Expunge Criminal Records Gains Steam

By Marco Poggio | March 7, 2021, 8:02 PM EST

Michael "Zaki" Smith lost his job after his employer found out about his past conviction during a random background check. Smith is now advocating for a bill that would automatically clear criminal records of people who live crime-free for a number of years after being released.

Years ago, Michael "Zaki" Smith spent time in prison after being convicted. Today, he won't talk about what landed him there. As a person who paid his debt to society and saw the rest of his life tainted by his conviction, Smith said he didn't want a news story to dwell on his past.

"I don't want to create another record," he told Law360.

Born and raised in Brooklyn, Smith calls himself "a product of the '80s." He lived through the crack epidemic and the war on drugs, which contributed to mass incarceration. Smith ended up being locked up too, eventually.

More than a decade after his release, Smith was working as an educator in a youth program for nearly five years when his employer asked him to get fingerprinted for a random background check. He lost his job soon after. Now, he's a reform advocate with Next100, an organization supporting a bill in New York that would clear the criminal records of people who have served their sentences.

The bill, which was introduced in the state Senate in January as part of a national campaign called Clean Slate, would help people like Smith overcome the barriers that past convictions pose to employment, housing and various benefits, supporters say.

"I got my skin in the game in terms of this legislation," Smith said.

Sponsored by Sen. Zellnor Myrie, D-Brooklyn, the law would create a two-tier process in which people who have served their sentences would first have their criminal records automatically sealed for most civil purposes. Several years later, those records would be expunged entirely, provided that those people haven't gotten any new convictions.

Advocates see the bill as necessary to "end the perpetual punishment" of people who have been incarcerated.

"There is real national momentum around the need to right the wrongs of the criminal legal system. New York has the opportunity to be a real leader on this issue," said Samantha Reiser, an attorney at Legal Action Center, one of the organizations supporting the legislation.

Past convictions can force people into a cycle of poverty and recidivism by creating a barrier to employment and basic services that would help them stay away from crime. Advocates say criminal records extend the justice system's disproportionate, punitive effects on low-income people and people of color. 

"There are 2.3 million New Yorkers who have old conviction records, and those records become barriers to employment, housing, access to higher education, and those are barriers because of the structural racism in policing and prosecution that disproportionately impacts Black and brown communities," said Katie Schaffer, an organizer at Center for Community Alternatives, one of the advocacy groups supporting the bill.

Schaffer said a comprehensive expungement law is long overdue in the state. While seizing on the national reckoning on racial injustice spurred by the police killing of George Floyd in Minneapolis, the legislation is also necessary to ensure people with criminal records will have access to jobs in the post-pandemic recovery, she said.

Compared with similar bills passed in other states, the New York one has much broader eligibility: All formerly convicted people can benefit from it, including those with violent felonies.

"This is critical," Reiser said. "Clean Slate NY believes that all people should be able to move beyond their conviction records, irrespective of their conviction type."

The Clean Slate bill would make a person eligible for automatic sealing upon release, provided that he or she is off community supervision. Automatic sealing would occur after one year for misdemeanors and three years for felonies, after the end of incarceration. Assuming the person does not incur any additional convictions, their conviction would be fully expunged at five years for misdemeanors and seven years for felonies.

Brooklyn's district attorney, Eric Gonzalez, told Law360 through a spokesperson that he is supportive of legislation to reduce collateral consequences of low-level misdemeanor convictions. It is unclear whether he feels the same about felonies.

Other district attorney's offices across New York City did not respond to requests for comment.

A spokesperson for the New York State Unified Court System, Lucian Chalfen, said state court administrators neither support nor oppose the bill, but are worried about technological problems it could create.

"While we have no position on the merits of this legislation, we are concerned as to its potential impact on court operations. We are in continuing discussions with Governor's Counsel as to the latter," Chalfen said.

The Police Benevolent Association, New York City's largest police union, declined to comment for this story.

The Current Expungement Process

The legislation would be a significant departure from the current state record-clearing law, Criminal Procedure Law 160.59, which passed as part of the Raise the Age legislation in the spring of 2017 and went into effect that fall. The law allows a clearing process on a case-by-case basis.

Reiser has been representing formerly incarcerated people who have filed applications to have their criminal records sealed under that law. The procedure turned out to be burdensome to most applicants, leading to little success, she said.

The law requires filing an application with the state court, which then needs to be served on the local district attorney's office. If the application is rejected, an applicant can request a hearing.

About 600,000 New Yorkers are estimated to be eligible to petition the state to have their criminal records sealed. However, less than 0.5% of those believed to be eligible have successfully cleared their records under the law, advocates say.

"It's a travesty," Reiser said. "Application-based record clearance laws are ineffective."

Advocates say the current eligibility criteria are too stringent and that the petition-based process ends up penalizing poor people, in most cases people of color.

"The current law really isn't accessible to most people," said Scott Levy, an attorney with The Bronx Defenders, which supports the new bill. "Our clients who have criminal histories are trying to get back on their feet, trying to support their families, and just run into roadblock after roadblock. The Clean Slate is designed to eliminate those obstacles."

Some of the hurdles are administrative. The current law requires that applicants have not had any convictions in the past 10 years. People who apply can't have more than two convictions on record, of which only one can be a felony — a nonviolent one.

Other obstacles are practical. People can file their petitions without the help of an attorney, but in reality, only a tiny fraction do so because they are intimidated by the process, Reiser said.

"Just figuring out whether or not you're eligible is difficult to do, let alone going through the process of putting together an application, filing it with the court, serving the district attorney's office and then representing yourself in the instance the application is contested," Reiser said.

Applicants often can't afford private attorneys, who often charge several thousands of dollars to take clients through the process, and overburdened public defenders sometimes can't come to their aid. Outside New York City, it's even harder to find free legal assistance with these matters, Reiser said.

Lack of awareness about the law could also be a reason why thousands of eligible people across the state haven't applied, she said.

But the harshest point of criticism on the law centers on race.

"When you think about who's eligible for a law that limits the number of convictions a person can have, it's necessarily, distinctly excluding Black and brown people," Reiser said.

Based on anecdotes from attorneys in other states that have application-based processes, the majority of people who are successful in having their criminal records cleared are those who can afford private counsel, predominantly white, Reiser said.

A Comparison with Other States

The Clean Slate campaign has gained momentum in recent years at a national level. In 2018, Pennsylvania became the first state in the country to pass a law that automatically seals certain conviction records after a person stays crime-free for 10 years. The law also allows the clearing of nonconviction records. An estimated 36 million criminal records were cleared between when the law went into effect in June 2019 and the end of 2020, according to the campaign's website.

Nearly a dozen states have since followed suit, either passing or considering automatic record-clearing legislation, according to Clean Slate advocates.

Click to view interactive version

Last September, Michigan passed a bill that automatically expunges misdemeanor and nonviolent felony records of people who have not had convictions in the prior seven years.

What sets the New York bill apart is that it doesn't have a cap on the number of convictions a person can have to be eligible for expungement and doesn't include carveouts for the most serious offenses.

In a practical sense, however, some criteria would mean that some people may never be eligible for records clearance: The bill requires that people be off community supervision, including probation, parole and the sex offender registry.

Opposition to the Bill

The Clean Slate campaign has enjoyed bipartisan support across the country. A national poll conducted in 2018 by the Center for American Progress, a liberal think tank, showed that about seven out of 10 Americans support efforts to automatically seal the records of nonviolent offenders. The poll was based on a 1,000-sample online survey. A partisan breakdown showed that 75% of Democrats and 66% of Republicans supported the initiative.

It is unclear whether there is the same support for the New York bill, which would also expunge violent felony convictions. Myrie, who sponsored the bill, represents a heavily Democratic district in central Brooklyn. The other senators sponsoring the bill are all from New York City, including from some of the bluest districts in the state.

Sen. Anthony Palumbo, a Republican representing the eastern end of Suffolk County, on Long Island, told Law360 he vehemently opposes the bill.

"I am absolutely not in favor of it," Palumbo said. "I think this bill as drafted is very detrimental to public safety."

Palumbo, a former state prosecutor and a ranking member of the Senate's code committee, where the legislation is being considered, said the bill is "disrespectful to the victims" of crimes because it would prevent them from accessing information regarding the convictions of perpetrators.

But the biggest issue at stake is safety, Palumbo said.

"It's a public safety thing," Palumbo said. "If you've got someone who's committed a number of violent crimes, you should know that."

A prospective employer wouldn't have a chance to know whether a job applicant was a serial burglar, or had a number of larceny convictions, he said.

"The ability for someone to rehabilitate themselves and ultimately expunge an old record is not something I'm completely opposed to. It's just the way this bill is drafted — I think it goes way over the line," Palumbo said.

A spokesperson for the New York State Bar Association said Friday that the organization has yet to take a position on the bill. The New York City Bar Association did not weigh in on this issue.

Senate Deputy Minority Leader Andrew J. Lanza, a Republican representing most of Staten Island, also said he opposes the bill.

"It only denies the people of our state the truth and represents a diminishment of transparency and accountability in New York state," Lanza said in a statement to Law360.

Not a Question of Safety

In New York and in the rest of the country, over 95% of convictions are by guilty pleas, according to data compiled by the federal judiciary and a database maintained by the National Center for State Courts.

In most cases, defendants are advised by their attorneys to take guilty pleas in exchange for more favorable sentences, according to several studies, including one released in December by the American Bar Association Commission on the American Jury.

"No one says, 'Hey, guess what, after you finish the two years, you will be a second-class citizen for the rest of your life," Smith said. "When a person is sentenced in a courtroom, collateral consequences are never mentioned."

It's not until after they have served their time that people realize the obstacles their convictions create in their post-release lives, he said.

"This is not, you go to prison, there's a date you're released, and then after that, that should be it. No. Now, your real punishment begins," Smith said.

Losing his job hurt him, he said. He had been out of trouble for many years following his release from prison. Smith felt he had turned his life around and invested himself in mentoring children, he said.

"There was no recourse," he said

A study by the Brennan Center for Justice, a liberal think tank based in New York City, estimated that people who serve time in prison see their annual earnings reduced by an average of 52% after incarceration — which amounts to a $484,400 loss in earnings over their lifetimes.

Meanwhile, a report produced by the University of Michigan Law School and published by the Harvard Law Review in June shows people who had their convictions cleared earned 22% more than those who still had criminal records a year after expungement. Another key finding in the study is that people who obtain expungement have "extremely low" subsequent crime rates, a notion that contradicts common public safety concerns surrounding expungement laws.

From the moment his conviction came back to haunt him on his job, Smith has felt compelled to advocate for legislation that would knock down the type of barriers he and many other people have encountered after incarceration. None of those barriers contributed to reintegrating him into society after paying the price for his actions, nor did they make his community safer, he said.

"The community is not safer because you have denied me life insurance. The community is not safe because you didn't allow me to work at McDonald's," Smith said.

--Editing by Aaron Pelc.

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