Many states have so-called clean-slate laws. Second chances allow those with criminal histories to seek jobs, housing and educational opportunities. A past criminal history can be a barrier to getting back on your feet, even after remaining crime-free for decades.
New York already has a sealing statute, enacted in 2017 with support from state prosecutors, who remain committed to helping people navigate the process of sealing past convictions. Prosecutors support second chances, and many lives in the Empire State would be transformed by a carefully thought-out clean-slate law that expands the universe of convictions that can be sealed.
Sadly, the clean-slate proposal pending isn’t such a law.
The legislation would automatically seal criminal records for a sweeping list of crimes — after one year for misdemeanors and three years for felonies. After five years, most misdemeanors would be automatically expunged, and after seven, many felonies.
How this would play out isn’t clear. Typically, “expungement” means records are completely destroyed and not available to law enforcement, prosecutors or courts. Is that what lawmakers really want? This also illogically means that some criminal records could be sealed before someone completes his prison sentence.
Lawmakers in Albany should remember lessons learned from bail “reform.” Soon after the state’s new bail laws went into effect, legislators realized that those accused of some crimes pose a risk to public safety or might not return to court and should be considered for bail. The law was amended to allow bail for crimes such as home burglaries, crimes that cause death and other serious crimes.
All offenses shouldn’t be treated the same. Some crimes pose a greater risk to public safety. Clean-slate bill sponsors agree and don’t want to allow sex offenders to benefit from automatically erased criminal records. But the bill sponsors haven’t considered the risk when it comes to murder, robbery, kidnapping, arson, assault, hate crimes, domestic violence crimes, drunk-or-drugged driving or gun offenses that would automatically be sealed and then destroyed.
Plus, prosecutors have pointed out that the proposed clean-slate bill requires expungement of “biometric information” yet doesn’t define the term. This could mean destruction of DNA-database records that help solve serial sexual assaults and cold cases, and so help overturn convictions and provide evidence for exonerations. Surely, our lawmakers don’t intend that.
Gun violence is plaguing all of our communities, yet the bill isn’t clear as to whether criminal records will be made available to the federal gun registry or gun registries of other states.
Commonsense clean-slate legislation should allow employers to seek records for specific offenses related to certain areas of employment. This could include those seeking jobs related to child care, elder care, transportation and financial industries. Wouldn’t you want to know if the school-bus driver has repeated convictions for drunk driving?
When changes to New York’s bail law were being discussed in Albany, legal experts pointed to states that reformed bail laws and got a lot right. Recently, Michigan enacted a comprehensive clean-slate law that incorporates important safeguards, striking a balance in allowing more people to benefit from sealed records while not helping out career criminals, chronic drunk drivers or other bad-faith repeat offenders.
Michigan specifically excludes a list of crimes from sealing, such as DWI and certain felony domestic-violence crimes. Courts, law enforcers and prosecutors can still access criminal records. Michigan seals misdemeanors after seven years, versus just a year as proposed in New York; felonies are sealed after 10 years, rather than the three proposed in our state. Michigan, moreover, puts limits on the number of convictions eligible for automatic sealing, so that career criminals don’t have the benefit of third, fourth or 20th chances.
Albany must consider some changes to the pending clean-slate law. Those who have paid their debt to society should be able to move on — career criminals shouldn’t.
Morgan Bitton is executive director of the District Attorneys Association of the State of New York.