The state Legislature recently (and quietly) enacted a conviction-sealing law tucked into the state budget bill. The legislation, for the first time, actively applies principles of rehabilitation and atonement to New York residents who have been convicted of not more than two nonviolent crimes, and who have been crime-free for more than a decade since their release from custody.
This groundbreaking legislative initiative follows the adoption of the New York State Bar Association’s identification of the sealing of prior convictions as a legislative imperative. It importantly follows on the heels of local “ban the box” legislation enacted by the New York City Council, which prohibits employers from inquiring about the existence of prior convictions unless (or until) a job offer has been conveyed to the job seeker.
Sponsored by Assembly Chair Joseph Lentol (D-Kings) and Senator Patrick Gallivan (R-Erie), the legislation, when effective this fall, will enable rehabilitated persons to petition the court of conviction to seal their prior conviction. Like a discharge in bankruptcy, this will allow thousands to approach life, school, bank loans and insurance forms with a “clean slate,” and enable them to answer pesky questions on job applications—if the petition to seal is granted—truthfully (and accurately) in the negative.
Long-recognized barriers erected as “collateral consequences” for those with a criminal record will now essentially qualify for vacatur (a court announcement declaring the record annulled), giving applicants a “second chance.” While law-enforcement agencies will be afforded access to records, the soon-to-be–available benefits have the potential to give fresh opportunities to people whose prior convictions used to be a permanent collateral consequence of a criminal conviction, similar to the indelible scarlet letter made famous by Nathaniel Hawthorne. This includes applicants for public housing, academic grants and scholarships, car insurance, and bank loans, as well as undocumented aliens seeking adjustments in their immigration status.
The genesis of conviction sealing (earned amnesty or conviction expungement) can be traced in New York to Kings County Assistant District Attorney Aaron Nussbaum’s book A Second Chance. It detailed the initiative to permit conviction expungement for state law crimes with legislation sponsored by then-Brooklyn state Senator (and late Supreme Court Justice) Harry Gittleson. That legislation passed both the Assembly and state Senate, but, sadly, was vigorously opposed by the media and vetoed by then-Governor Nelson Rockefeller.
While an individual with two or more felony convictions is deemed ineligible to apply for conviction sealing, for the untold thousands who may have made one or (at most) two mistakes that resulted in conflict with the criminal-justice system, a new day of personal redemption has surely arrived. The sealing statute is not automatic, and does not require the court, to whom the application is made, to seal an applicant’s prior conviction. Rather, it requires the court to consider the application. Accordingly, this legislation is likely to spur a “cottage industry” within the legal profession to address the probable pent-up demand.
It is hoped that the New York Congressional Delegation will undertake to draft (and help enact) federal sealing legislation, providing relief to those convicted of violating federal law. This is particularly vital since Brooklyn Federal Judge John Gleeson’s decision in United States v. Doe was overturned by a panel of the United States Court of Appeals for the Second Circuit in August 2016. The majority opinion acknowledged the perception that expungement is a legislative determination for Congress to approve, inciting a speech by then-Attorney General Loretta Lynch decrying the unfortunate “lifelong toll” that criminal convictions often impose upon low-level offenders.
At a time when “mass incarceration” is recognized as counterproductive, New York’s sealing statute shines a bright light into the darkness of despair for those at the margins and in the shadows of society. Hope is on the way.
Roger Bennet Adler is a practicing attorney in New York City, and previously served as counsel to various state Senate committees.