Sure, I was being a bit tongue-and-cheek with the title to this blog entry, but the more I read about the Clean Slate Act (A. 1029A and S.211), a potential law that will automatically seal all misdemeanor and felony convictions other than sex crimes, the more I fear New York may have again lost its way in pursuit of a just and righteous end. No, the criminal justice system will not be sending criminals from our courthouses with babka in hand while telling their victims not to let the door hit them on the way out, but someone has to tap the brakes before we find ourselves with indelible regret that no statute can seal.
The Clean Slate Act: What is the Proposed Law
In short, while the provisions are still being worked out, the Clean Slate Act will codify the automatic and administrative sealing of all misdemeanors and felonies, other than those relating to sex or sexually violent offenses, after three and seven years respectively of a person’s conviction, term of incarceration, or term of supervision, whichever is later. There is no maximum number of convictions that would seal. Practically speaking, at least as how I read it, an individual convicted of a gunpoint Robbery who did nine years in prison, followed by five plus misdemeanor convictions such as for Assault, Petit Larceny, Weapon Possession, Identity Theft, and Menacing, is guaranteed to have his or her complete record sealed once he or she is beyond the statutorily required time frame and has no criminal cases pending in New York State (more on this below). Though law enforcement will have access to the criminal history, other than for a select few other purposes, such as for firearm licensing or working with children, the public – employers, landlords, and others – will not be allowed to ask about these prior sealed convictions, and a background check won’t reveal them either.
The Clean Slate Act: The Good
People make mistakes. People pay their dues. People deserve the restoration of their dignity and a genuine opportunity to move beyond their years old missteps. It is hard enough to find a job and housing in today’s world, but a criminal conviction can make it crippling unattainable. Simply, its neither just nor fair to brand every convicted criminal in perpetuity with something far worse than a Scarlet Letter. Obviously, I only speak for myself, but the principle behind both the Clean Slate Act and its predecessor, Criminal Procedure Law 160.59 that allows for no more than two non-violent and non-sexual crimes to seal after ten years upon a judge’s review, is one that I fully support. Whether you were prosecuted a little too zealously, made a bad choice in your youth, lacked the support system or education many of us take for granted, were a victim of racism whether personal or institutional, or did something pretty ugly and selfish, at some point, setting aside the worst offenses, you deserve a second chance to provide for yourself, your family, and your greater community.
The Clean Slate Act: The Bad (and the Ugly)
On its face, the Clean Slate Act appears to be a no questions asked gift to every person convicted of any and all non-sexual crimes in New York as long as they satisfy the statute’s liberal criteria. In sum, this “criteria” is simply that the convicted person has no pending criminal cases in New York – even if they have pending out-of-state or federal cases or subsequent convictions within the three or seven year threshold. Throw in the fact that there is no provision to allow for judicial discretion in regard to the conduct, evidence, and background of a case, as well as the history and current life of the convicted person, we should all see the red flags flapping frantically in the wind. Equally concerning, victims and their families have absolutely no opportunity to be heard in the sealing process and, though I may have missed it, are not advised before or after their victimizer’s case is closed to the public.
In addition to the above concerns, the law does not carve out enough crimes, or really any other than sex offenses, for automatic sealing. For example, unlike CPL 160.59 that disallows the sealing of statutorily defined violent offenses such as Murder, Attempted Murder, armed Robbery, among others, the Clean Slate Act looks the other way. Hate crimes? They are automatically sealed too. In practical terms, if a person is convicted of violating an Order of Protection in a DV case, either a felony or reduced charge for shooting a kid in the street, stealing from their mom-and-pop employer forcing the business to close or defrauding a vulnerable senior who loses her savings, or busting another guy’s jawbone because of his race or ethnicity, the public will be none the wiser. As long this person stays clear of a conviction in New York, even if they disregarded a court order, left a kid paralyzed, never paid one cent of restitution, remain an unapologetic racist, and is even convicted or arrested for a sex offense (or any crime) in any other state a week before their sealing eligibility, New York will hand them a babka baked from an impenetrable, non-reviewable, and non-negotiable right to have their case sealed. That’s right. No questions asked nor concerns given.
The Clean Slate Act: Domestic Violence
As a preliminary matter, and relevant to this far from atypical scenario, New York has mandatory arrest policies in Domestic Violence (“DV”) crimes to protect the most vulnerable, often women and children. In this hypothetical, a low-income mother of three young children is strangled by the father of her children leaving her with bruised fingerprints on her neck. Not done, he hits her with a bottle and gives her a big ole weeping gash on her lip and cheek. You know, the kind that is somewhat gaping and makes you cringe when you look in the mirror. Maybe, for good measure, he gifts her “raccoon eyes” just because he’s the boss. First time he’s “tuned” up his girl for talking to another guy? Sure, maybe, but maybe there are prior arrests or convictions, or even a half-a-dozen Domestic Incident Reports for threats, verbal abuse, and physical attacks.
Nonetheless, because she’s frightened or needs his income, our vulnerable mom of three decides not to cooperate with prosecutors, leaving law enforcement in the unenviable position of downgrading the case to a misdemeanor or dismissing. What may have been a felony, now either gets dismissed, making this law inconsequential, or, in the Clean Slate Act scenario, results in a misdemeanor conviction along with time served or a conditional discharge. Adding to our story, this man, aka, the wife-beater, has two prior convictions in New York for misdemeanor DV crimes from five and nine years ago respectively, and one from a year ago in Pennsylvania along with an open matter in that state. Despite what a judge would objectively consider before sealing a case, assuming it was eligible under CPL 160.59, the Clean Slate Act strips the courts from the review process. Should the proposed legislation pass, our abuser is the open armed recipient of a no-questions asked, guaranteed, and whitewashed sealing of his entire criminal record in New York.
The Clean Slate: Reduced Plea
An individual breaks through a person’s front door and enters the premises to commit a sexual act. Maybe the individual doesn’t get far enough to be charged with a completed crime or maybe the sex offense is a lesser offense than the Burglary. For whatever reason, the offer is made to a lower count of Burglary or an Attempted Burglary, but there is strong evidence of the sex offense. While it still may be a felony, the conviction will seal unless the prosecution insists on adding the sex crime to the plea, assuming they can do so. If they cannot, but there are statements and admissions reflecting the individual’s intent to sexually violate the resident, none of that will see the light of day because the Clean Slate Act solely looks to the conviction without regard to the underlying facts.
What this All Means
Having been on both sides of the criminal justice system for 23 years as a criminal defense attorney and prosecutor, I unequivocally believe bail and discovery reform need further tweaking, but they were as welcomed as they were long overdue. Similarly, New York’s record sealing law, pursuant to CPL 160.59, was a tremendous step in the right direction for certain individuals – those with no more than two total convictions of which only one could be a non-violent or sexual felony – after ten years of paying their societal dues.
So, what does this all mean? Heck if I know, but asserting the potential law is about the labor force, employment, and allowing people to move forward with their lives, is disingenuous even if it is a valid motivating factor behind the Clean Slate Act. Simply, ignoring recent federal and out-of-state convictions, as well as pending criminal cases, and summarily grant sealing, doesn’t resolve the same employment and housing issues that exist, and certainly doesn’t make any community safer. Merely because the law disregards the ongoing sexual assault case in Maryland or DV conviction in New Jersey does not mean they do not exist. In fact, it throws a wrench into advocates’ theory that the individual has paid his or her dues and is now reformed.
At a time when prosecutors find themselves questioning their career choices as they push reems of paper instead of pursuing the justice they signed up for – a job they could have jumped at with far greater pay in Big Law before dedicating themselves to public service, more defendants gleefully seeing their cases procedurally dismissed or availing themselves of very favorable dispositions due to discovery reform’s excessive demands on District Attorneys, and judges’ inability to set bail on domestic abusers who are “only” charged with misdemeanor Assault for knocking around their gal pals, the Clean Slate Act is foolishly on track to become another example of New York hastily doing what is right in principle but devastatingly wrong in application.
Jeremy Saland is a criminal defense attorney and former Manhattan prosecutor.