New York Should Expunge Criminal Convictions

* Update. 

As of October 7, 2017, New York courts may expunge eligible offenses under Section 160.59 of the Criminal Procedure Law.

“Expungement” is the sealing of government records related to contact with the criminal justice system.

New York seals dismissed charges. New York also seals convictions of non-criminal offenses.  

However, New York does not seal criminal convictions, with one exception: courts may vacate and seal prostitution-related convictions, where the defendant is later determined to have been a victim of sex trafficking.

New Jersey Expunges

The neighboring state of New Jersey expunges criminal convictions of first-time offenders, including first-time felony offenders, 10 years after completion of sentence. 

The waiting period can be reduced to 5 years where “the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction”. Certain violent felony convictions, such as “criminal homicide”, “kidnapping”, and “sexual assault”, are ineligible. Certain drug trafficking crimes are also excluded.

The purpose of expungement is to alleviate employment discrimination suffered by people with criminal records, along with discrimination in other areas.

New York Certifies Good Conduct, But Doesn't Expunge

In New York, courts and the Department of Corrections and Community Supervision (“DCCS”) may issue a “certificate of relief from civil disabilities”. Similarly, DCCS may issue a “certificate of good conduct”. 

Neither certificate results in sealing. The certificates merely prevent a criminal conviction from automatically disqualifying a person from government employment, and from qualifying for government-issued licenses and registrations.  However, the certificates do not “in any way prevent any judicial, administrative, licensing or other body, board or authority from relying upon the conviction specified therein as the basis for the exercise of its discretionary power to suspend, revoke, refuse to issue or refuse to renew any license, permit or other authority or privilege.”

In other words, certificates of relief and certificates of good conduct permit government discrimination on the basis of criminal convictions. They only prohibit automatic government discrimination. The certificates have no effect on private-sector discrimination based on criminal convictions. They don’t seal criminal convictions.

The relief provided by certificates of relief and certificates of good conduct is a far cry from expungement. If a conviction is sealed, prospective employers won’t be able to discover it by checking a person’s background through the FBI or through New York’s Division of Criminal Justice Services.

If rehabilitation truly is a core purpose of criminal justice, then expungement of criminal convictions should be available to people who demonstrate good character over time.

Expungement Should Be Enacted in NY

New York State Senate bill S04976, establishing “the earned amnesty act of 2017 authorizing the expungement of certain convictions after 10 years”, is currently in committee. Bill A03209 is likewise pending in the Assembly.

The Senate bill correctly recognizes that “Arrest and subsequent conviction can have devastating impacts on an individual, his or her family and community." Further, “a criminal conviction carries a devastating lifelong stigma that impacts emotionally, socially, and economically. It has been described as a debt that is never deemed fully paid.”

The bill would provide “limited expungement to demonstrably rehabilitated offenders who have affirmatively demonstrated that they are both effectively rehabilitated and have earned the right to ‘clean the slate.’” This is a worthy goal of a criminal justice system that never is shy about doling out punishment.

Similar bills have been pending without passage for several years. New York should enact the enlightened idea of expungement into law. Now.

Bruce Yerman is a New York City criminal defense attorney.

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