Many people learn from their mistakes. Most believe that a mistake made when young should not haunt you for the rest of your life. But New York is a state where it will, if your stupidity or bad judgment resulted in a criminal conviction.
A criminal record can prevent you from being considered for many jobs, housing, college, insurance, loans, even to be an adoptive parent, and obtaining many other licenses and benefits important to everyday life.
Some mistakes have very long-lasting, and wide-ranging consequences, out-of-proportion to the wrong committed. That recognition is part of the reason for the new state law reducing marijuana penalties. Effective at the end of this month, possessing up to 2 ounces of marijuana will be a non-criminal Violation, instead of a Misdemeanor.
This column is about another feature of that law, providing for expungement of marijuana possession convictions that occurred before August 28, 2019, which are no longer criminal. Expungement means the criminal conviction will be erased from your record; it will legally disappear as if it did not happen.
This provision for low-level marijuana possession is the first expungement law on New York’s books. It is automatic; the Office of Court Administration is required to determine every person eligible and notify the Division of Criminal Justice Services and law enforcement, who must then erase the convictions. There is no procedure for this yet, because there has not been any other expungement law.
The New York Division of Criminal Justice Services says that more than 200,000 convictions will be deleted, resulting in at least 24,000 people no longer having any criminal record. This can be life-changing for those affected.
The closest we have in other cases is a recent law for “sealing” records of people who have no more than two convictions - one can be a felony - and have been law-abiding for at least 10 years (CPL 160.59). It is better than nothing, but it is discretionary with the judge, and the record still exists, available to law enforcement and certain potential employers.
We should ask: Why isn’t expungement available for anyone else in our state? No matter how much time has passed, how law-abiding and productive your life, you are not allowed the opportunity to erase that long-ago error. You can never redeem yourself; you must live with the consequences.
The fine and sentence end, but the “collateral consequences” do not. A “collateral consequence” is a legally imposed civil penalty triggered by a criminal conviction. They seem to be almost without limit. Our legislature keeps adding exclusions for people with any kind of criminal record, perhaps without much thought to whether there is real justification for them. On the National Inventory of Collateral Consequences of Conviction website (niccc.csgjusticecenter.org), I came up with 950 possible impacts in New York.
This has always bothered me about New York. I moved here in 1978 from Michigan, where I grew up and went to law school. Michigan had a very reasonable expungement statute, and I remember being astounded when I couldn’t find such a law in New York. My reaction is still the same, even through my years as prosecutor and judge.
We want people who break the law to change, and there are many who do that. Yet, they can never get out from under the burden of their criminal convictions. Of course, not everyone should; but no one?
Sometimes, if prosecutors see that it could prevent college financial aid, or interfere with an employment application for corrections or military recruitment, for example, they may change plea offers so a defendant does not get a conviction for a minor offense. But, there are many more collateral consequences than we realize and can take into account. Other times, the criminal conviction is very justified, even if it will carry a life-time of limiting opportunity. The prosecutor, the judge and defense attorney must address the particular case.
It is the public and the legislators who should pay attention to the over-all policy considerations. We should acknowledge that serving the court-imposed sentence is only part of the consequence of breaking the law.
Penny Clute has been an attorney since 1973. She was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.
NY Court information on applying to "seal" records: https://www.nycourts.gov/courthelp/Criminal/sealedRecords.shtml
Division of Criminal Justice Services — Requesting your NY criminal history or verification that records are sealed: https://www.criminaljustice.ny.gov/ojis/recordreview.htm