NY Bar recommends criminal record sealing
A recommendation to allow certain low-level criminal records to be sealed is being sent to the state Legislature for consideration. The move was approved Jan. 27 by the New York State Bar Association’s House of Delegates at the association’s annual meeting in New York City.
Mineola attorney Richard D. Collins said most states have some mechanism to allow people a second chance.
Collins chaired the Criminal Justice Section Sealing Committee along with New York City attorney Jay Shapiro, a former prosecutor. Their committee’s 38-page report recognizes the detriments a criminal record may have on obtaining future housing, employment or an education while balancing that with a future threat to society.
“We recognize that to err is human,” the report states. “All of us from time to time make mistakes. Some mistakes, those involving the violation of a criminal statute, can have life-changing impact, not merely on the offender, but the offender’s family and the community at large.”
The committee chose to use the word “sealing” instead of “expungement” because expungement refers to destruction of records. Sealing would allow the records to be unsealed if the offender gets into trouble in the future.
Collins said the option would not apply to violent felons or habitual or career criminals. Sealing would not be automatic. Defendants would have to apply to the court to have the records sealed. There would be a waiting period of five years for misdemeanors and eight years for Class D and E nonviolent felonies. Up to three misdemeanors could be sealed, but only one felony. A $95 filing fee is being recommended.
No records involving sex crimes or crimes against children would be eligible for sealing. At the recommendation of Nassau County District AttorneyKathleen M. Rice, first vice president of the District Attorneys Association of the State of New York, crimes against the elderly or the public would also be excluded from sealing.
The committee also takes into account the increase in access to public records with the Internet and “hundreds of private, commercial background screening businesses” creating their own repositories.
“Criminal history background checks have become so widespread that in ‘2002, for the first time, the FBI performed more fingerprint-based background checks for civil purposes than for criminal investigations,’” the report notes, citing a previous report of the state bar’s Special Committee on Collateral Consequences of Criminal Proceedings which issued a report and recommendations to the House of Delegates in May 2006.
The first report also notes records are being accessed by the public, employers and landlords and that committee concluded the importance of sealing criminal records skyrocketed with the increase to public access of the records.
The state currently has no expungement or sealing law for convicted adults except for drug defendants completing judicial diversion and other programs.
“Other than these exceptions, a conviction follows an ex-offender to the grave,” the new report says.
In coming up with its recommendations, the committee also evaluated two pending Assembly bills, a similar New Jersey statute and input from other groups, including the New York District Attorney’s Association and the New York State Association of Criminal Defense Lawyers.
Several factors would be considered before granting the sealing of records, including the nature of the crime, character of defendant and steps taken toward rehabilitation since the crime, criminal history, the impact sealing the records would have on defendant’s rehabilitation and productive re-entry into society and on public safety, and any victim statements.
The decision would be at the judge’s discretion, Collins said.
Part of the justice system is forgiving mistakes, said New York City attorney Stephen P. Younger, NYSBA’s immediate past president. He said modern criminal justice policy focuses on rehabilitation and re-entry.
“Six years ago, we found this was overdue,” he said, referring to the previous report. “Six years later, it’s long overdue.”
(As seen on LIBN.com)