Relates to the sealing of certain criminal records

This measure would amend the Criminal Procedure Law by adding a new section 160.65 to provide a second chance to certain persons convicted of crime in the past by allowing them to apply to a court for an order sealing their criminal record. Next the measure would amend section 160.55(1) to clarify that sealing records upon a conviction of a petty offense is authorized in all cases, regardless of the top count of the accusatory instrument by which an individual was originally charged. The measure also includes an amendment to section 296(16) of the Executive Law (part of the State's Human Rights Law) to make it an unlawful discriminatory practice to inquire about a person's sealed criminal convictions when such inquiry is in the context of that person's application for licensing, employment or the provision of credit or insurance; and the addition of two Unconsolidated Law provisions, one deeming an inquiry as to a person's past criminal convictions in the context of such person's application for licensing, employment or the provision of credit or insurance to be an inquiry exclusively as to those convictions that have not been sealed, however the inquiry may actually be worded, with the other assuring all individuals an absolute right publicly to speak or write about any information they may have concerning another's past conviction(s), whether sealed or not. Finally, the measure would amend section 750 of the Correction Law to clarify that the provisions of Article 23-A, which govern the licensure and employment of persons previously convicted of criminal offenses, are - with exceptions - not to be applied where the conviction has been sealed under Article 160 of the Criminal Procedure Law.

I. Particulars of the proposal.

The principal provisions of this measure are two-fold. First, it would add to the Criminal Procedure Law a statute, new section 160.65, expressly authorizing certain individuals convicted of certain criminal conduct in the past to apply to a court for an order sealing the record of that crime. Second, it would make it an unlawful discriminatory practice under the State's Human Rights Law, in most every day circumstances, to inquire about past criminal convictions that have thereby been sealed.

Summary of proposed section 160.65.

1. What is the purpose and effect of a sealing petition under section 160.65? The purpose of such a petition is to give certain past criminal offenders, i.e., nonviolent individuals whose criminal conduct was so far in the past as to make them statistically no more likely to commit future crime than any other person, a means by which to have their criminal record sealed from public view and thereby to relieve them of some of the economic and social stigma that generally

attaches to criminal offenders even after their debts to the community have been paid. Where such a petition is granted, all official records and papers relating to the arrest, prosecution and conviction of the individual benefitting therefrom must be sealed by the sentencing court and the Division of Criminal Justice Services and, subject to several exceptions, kept from public availability. These exceptions make otherwise sealed records available to: the petitioner or his or her agent; courts and various State and local public offices defined as "qualified agencies" under section 835 of the Executive Law acting in the scope of their official duties; public offices with authority to issue gun licenses; prospective employers of police and peace officers; the Justice Center for the Protection of People with Special Needs and officers and agencies over which the Center exercises oversight; and any other public or private officers or institutions employing persons who thereby have regular contact with children or other vulnerable individuals as may be designated by the Chief Administrator of the Courts.

Where a section 160.65 petition is granted, it will not provide the petitioner with relief from any forfeiture or disability or other bar imposed by reason of his or her conviction for the offense the records of which are to be sealed - although the statute expressly permits a person filing a sealing petition simultaneously to submit to the court an application for relief from disabilities under Article 23 of the Correction Law. Nor will the grant of such a petition bar future use of such conviction in any future sentencing proceeding or as an element of an offense in any future criminal proceeding or regulatory action against petitioner.

2. Who may file a sealing petition and when? Any person who has been convicted of a single felony with no other criminal record OR of one or two misdemeanors with no other criminal record may file a petition provided:

(i) if he or she was convicted of a felony, the the conviction must have occurred at least ten years earlier and may not have been for a violent felony offense, an offense for which life imprisonment is an authorized sentence, a sex offense, an offense involving official misconduct or bribery by a public servant, an offense under section 1192 of the Vehicle and Traffic Law involving driving while under the influence of alcohol or drugs or an offense for which violation of section 1192 is an essential element; or

(ii) if he or she was convicted of one or two misdemeanors and no felonies, such conviction(s) must have occurred at least seven years earlier and may not have been for a sex offense, an offense involving official misconduct or bribery by a public servant or an offense under section 1192 of the Vehicle and Traffic Law involving driving while under the influence of alcohol or drugs.

Notwithstanding these conditions, no person may file a petition unless he or she has completed whatever sentence or sentences were imposed on account of his or her conviction(s), including any period of imprisonment, the completion of any period of parole, probation, conditional release or post-release supervision, fulfillment of any restitution obligation, completion of any period of community service and payment of all fines and surcharges; and any period of

incarceration served by that person shall toll the ten-year/seven-year waiting periods. Nor may any person file a petition while a charged criminal offense is pending against him or her.

2. How often may a section 160.65 petition be filed? Where a person files such a petition and it is denied, such person must wait at least two years before he or she may file another petition. Once a section 160.65 petition is granted, the person who filed it may never again file such a petition. Thus, even if he or she later is convicted of another crime and would otherwise be eligible to file a petition to seal the records of that subsequent conviction, he or she will be barred from doing so.

3. How and where is a section 160.65 petition filed? Where such a petition is being filed for an order sealing the record of a past conviction for a felony, the petition must be filed in the superior court in which the conviction was entered. Where the petition is being filed for an order sealing the record(s) of one or two past convictions for a misdemeanor, the petition must be filed in a superior court of the county in which at least one of such convictions was entered.

Any section 160.65 petition must be accompanied by a $95 filing fee.

4. What is the process a superior court must follow in determining a section 160 65 petition? Upon receipt of such a petition, the court must request from DCJS and the FBI the petitioner's updated criminal history record. If the petitioner meets the criteria requisite to the filing of a petition, and the conviction records to be sealed relate solely to misdemeanors, the court must grant the petition and order the records sealed. If, instead, the conviction record to be sealed relates to a felony, the court has the discretion to grant or deny the petition. Before exercising that discretion, the superior court must notify the local district attorney of the petition, and give him or her between 30 and 60 days to comment on the petition; and the district attorney must relay notice of the petition to any victim of the felony. The court entertaining the petition may then hold a hearing to aid its determination, which must follow consideration of all relevant factors including, but not limited to (i) the circumstances/seriousness of the offense, (ii) the petitioner's character, his or her criminal history and efforts at rehabilitation, (iii) the impact of sealing upon petitioner's rehabilitation and successful reentry into the community, and (iv) any statements made by any victim of petitioner's offense.

Every determination of a section 160.65 petition must be in writing and, where the determination results from an exercise of the superior court's discretion, the written determination must set forth the reasons therefor.

5. Can the records of a conviction sealed upon a section 160.65 petition be unsealed? Yes. They must immediately be unsealed where the person convicted is arraigned on the charge of a subsequent felony offense; and unsealed following conviction of a subsequent misdemeanor offense. Under both circumstances, however, should the prosecution ultimately result in termination in favor of the accused, the unsealed records must be resealed.

Summary of proposed amendment to the Human Rights Law (Executive Law 296(16))

In addition to authorizing the sealing of past criminal convictions, this measure amends the Human Rights Law to make it an unlawful discriminatory practice under terms of that Law, in connection with an individual's prospective licensing or employment, or application for credit or insurance, to inquire about such individual's past criminal convictions that have been sealed; or to act adversely to such individual on account of such convictions. In this respect, the measure merely expands current prohibitions against inquiry concerning and use of knowledge about past criminal prosecutions terminated in an individual's favor; about youthful offender adjudications; about past violation convictions; and about certain past drug convictions that have been sealed from public view. Critically, the measure expands present exceptions to the protections of section 296(16) for the benefit of officers and agencies over which the Justice Center for the Protection of People with Special Needs exercises oversight and officers, institutions, etc., employing persons who thereby have regular contact with children or other vulnerable persons as designated by the Chief Administrator of the Courts. Thus employers whose employees have regular contact wi th vulnerable populations will not be barred from inquiring about a job applicant's past criminal history, including any convictions that may have been sealed pursuant to the other provisions of this measure.

There are three other elements to this measure. First, the measure assures all individuals an absolute right publicly to speak or write about any information they may have concerning another's past conviction(s), whether sealed or not. Thus, sealing, as envisioned by this measure, does not threaten public discourse, whether through the media or otherwise, as to a person's criminal history where that history is public knowledge. The only obstacle imposed by this measure is to inquiry as to that criminal history by a prospective employer or someone in position to grant a license or credit or some other form of benefit, and their use of that history as a factor in determining whether to provide a job or other benefit.

Second, the measure not only bars use of sealed criminal history information, making it an unlawful discriminatory practice to inquire about the past criminal activity to which it relates, it spares a person whose past criminal conviction has been sealed from ever being placed in the position of having to lie when improperly questioned about a sealed conviction. This measure does sanction an answer that otherwise would be a lie (i.e., "no, I haven't been convicted"), but, instead, by statutorily deeming any question about past criminal offenses, however it may be phrased, to be: "have you ever been convicted of an offense where the records thereof have not been sealed?". Thus, this measure should make it impossible to ask a question to which a past offender, whose records have been sealed, should ever have to lie.

Finally, this measure would amend CPL 160.55(1) to clarify that the terms of that provision, addressed to the sealing of records upon a conviction of a petty offense, apply in all cases, regardless of the top count of the accusatory instrument by which an individual was originally charged. This will counter the practice that has evolved,

contrary to the seeming intent of the current statutory language, whereby the sealing benefit accorded by the section has only been extended to cases where the top count charged in the original accusatory instrument was a misdemeanor or felony, but not where the top count was a petty offense.

II. Why this proposal.

The Penal Law sets forth the punishment to be assessed where a person commits a particular criminal offense. This punishment might include a fine, conditional discharge, probation or imprisonment. Other laws set forth further punishments in the case of conviction for certain offenses such as loss of voting privileges or the ability to sit on a jury. These punishments are finite, in the sense that at some point they reach an end: fines are paid, probation is completed, and, in all but the comparatively rare instance of certain life sentences, a prison term is served. A certificate of relief from civil disabilities can be procured. We appropriately describe the person who satisfies his or her sentence as having paid his or her debt to society. But that's a technical observation. The real question is when, if ever, do we spare that person of the public stigma that also attached to his or her criminal conviction and punishment?

Some would say, "you can't change history." That once a person is convicted of a crime, and is punished therefor, it's delusional, if not outright Orwellian, to change the public record so that those facts can be denied. But this ignores the fact that it is human nature to continue to look suspiciously at a convicted criminal no matter how long ago his or her offense, no matter that he or she did his or her penance, no matter that he or she may have led an exemplary life ever after; and that this suspicion has real world consequences in the form of hiring and other economic, housing, social and civil prejudice. Accepting this fact of human nature, we must ask whether we really want to make of the convicted offender a permanent pariah in our midst? Is it really the case that we want his or her punishment to be endless? Is it really in the community's best interests to keep him or her on the margin, to make it difficult for him or her to get a good job so that he or she can achieve personal stability, stay clean, support a family and contribute to community welfare?

This measure is prompted by the belief that, consistent with community safety and consistent with responsible attitudes toward the goals of penology, it is essential that we give greater meaning to the idea that a person with a prior criminal history can reach a point where he or she truly has paid his or her debt to society. No humane society should convert all past offenders into a permanent underclass: to do so ignores any sense that some proportionality between crime and punishment must be respected, and, more importantly, it harms the larger community because it can deprive that community of the contributions a rehabilitated past offender can make and because, by making it more difficult for past offenders to integrate into the community, it often generates even greater costs in terms of encouraging recidivism and greater and more costly demands upon local social welfare institutions.

Studies show that the longer a convicted person goes without committing a new offense, the less likely the person will ever commit

a new offense. Where an individual leads a law-abiding life for many years after a conviction, the risk of that person committing a new crime reverts to the same level as anyone who has always led a law-abiding life.{1} Accordingly, this measure reflects a very delicate balance of considerations. It purges the public record of a select class of past offenders - but only those people who are so far removed from their former criminal activity that it is statistically certain that they represent no greater threat to the community than other people who have no prior criminal record. Critically, it does this without compromising law enforcement's ability to use the record of an individual's past criminal activity, no matter how far in the past, in assessing and prosecuting future criminal activity. Nor does it act to provide relief from civil disabilities, or bar access to past criminal activity for employers who would hire individuals for sensitive jobs involving vulnerable populations (e.g., schools, daycare centers and the like).

This measure seeks no more than to aid a limited class of former misdemeanants and non-violent felons to get on with their lives by closing off public view of their criminal histories when they seek employment, credit and the like. It does this not by authorizing individuals publicly to disavow prior criminal activity when to do so would be untrue -- indeed, in this respect, it is unlike some past legislative proposals that expressly authorized exactly that - but, instead, by limiting general public access to criminal history records and by barring prospective employers from discriminating against those individuals on account of past criminal activity that has been sealed. Critically, the proposal imposes no limitation on the press or anyone else in the community in terms of reporting about or discussing an individual's known criminal history. This measure would have a positive impact on the public treasury, reflecting the revenue it would generate from each $95 petition fee plus all outstanding fine and surcharge money that might be paid by individuals who, wishing to qualify for the sealing relief this measure would afford, must satisfy all outstanding financial obligations that were part of their sentences before they can do so. The measure would take effect 180 days after it shall have become law and apply to convictions occurring before, on or after such effective date.

Legislative History: None. New proposal.

{1} Redemption' in an Era of Widespread Criminal Background Checks, Alfred Blumstein and Kiminori Nakamura, published by the National Institute of Justice, http://www.nij.govdoumals/263/Pagethedemption.aspx