New York lawmakers have taken immense steps toward building a fairer criminal justice system. But little has been done to help people put their lives back together after a conviction or time in prison.
That’s an unfortunate oversight — especially given the evidence that good jobs and housing, among other factors, may help keep people from returning to crime. Parole reform and automatically expunging criminal records are two important ways that lawmakers can help expand economic opportunity and help bring the legislature’s work on criminal justice reform full circle.
How mass incarceration connects with poverty
First, it’s important to understand the connection between poverty and the criminal justice system. Decades of research show that people in prison tend to have faced other, serious challenges before their incarceration. For one, mental health issues are common among people in prison, who are also less likely to have a high school education than the general population and more likely to come from economically disadvantaged backgrounds.
Prison generally only exacerbates these problems. For example, Brennan Center research shows that time in prison can cut annual earnings roughly in half. There are many potential explanations for this effect, such as pervasive unemployment. According to some estimates, around 27 percent of formerly incarcerated people are unemployed. By comparison, the civilian unemployment rate hit 10 percent in the immediate aftermath of the Great Recession, and briefly peaked near 15 percent during the first wave of Covid-19.
Truly transforming our criminal justice system means long-term thinking. We need policies that address these endemic problems and expand economic opportunity for people with a criminal record. Indeed, poverty and unemployment experienced after prison may even lead some people back to crime (though the connection between recidivism and employment is very complicated).
Parole reform and the Less is More Act
The Brennan Center supports a broad array of reform proposals, and there are two specific bills that are especially worthy of New York legislators’ attention.
The first is the Less is More Act (S. 1144 / A. 5576), which would prevent people from being sent to jail and ultimately reimprisoned for the slightest deviations from the conditions of parole. These reincarcerations interrupt the already difficult process of reentry, upending the lives of people on parole and their families and likely contributing to the long-term economic consequences of time in prison.
Currently, parole operates on a “hair trigger,” such that violating even a minor (or “technical”) condition of release can land someone in jail for up to 105 days, and ultimately back in prison. Common parole conditions include maintaining regular meetings with a parole officer; others may entail submitting to drug and alcohol tests and abiding by curfew and residency requirements. Functionally, this means that people on parole can be (and have been) summarily jailed and returned to prison for something as minor as failing a drug test. Incarceration for technical violations is also surprisingly common; nearly 7,500 people were reimprisoned for these violations in 2018. According to Columbia Justice Lab, reincarceration in jails and prisons cost the state roughly $680 million.
The Less is More Act addresses these problems by limiting the circumstances in which someone can be sent to jail or prison for a technical parole violation. Under the bill, people accused of technical violations cannot, in most cases, be detained in jail while awaiting a parole revocation hearing. Further, when detention is authorized, hearings would have to be held promptly to minimize time in jail. And people determined to have committed a technical violation would not, in most cases, be returned to prison. Instead, they would face an escalating list of sanctions, with reimprisonment authorized for people who repeatedly break parole conditions.
Notably, the bill would not expand parole eligibility or make parole easier to obtain. People who commit serious new crimes while on parole would also continue to face reimprisonment.
These are not radical changes. In fact, they would merely bring New York into line with many other states. According to New Yorkers United for Justice, 24 states have passed laws that limit the use of incarceration for technical violations. For example, South Carolina passed a law in 2010 authorizing parole officers to respond to technical violations with “administrative sanctions” keyed to the “severity” of the violation and the paroled person’s history. Sanctions range from “verbal or written reprimands,” to community service, to home visits.
According to an Urban Institute evaluation, parole revocations dropped sharply in the aftermath of South Carolina’s reforms, and recidivism appears to have declined as well. By passing the Less is More Act, New York could potentially realize the same benefits.
“Clean slate” and automatic expungement
A criminal record can hang over someone’s head for decades. The broad availability of criminal records is also a uniquely American problem, as the late NYU Law School professor James Jacobs showed in his seminal book on the issue, The Eternal Criminal Record. Americans have made a policy choice to value transparency over rehabilitation and privacy, with profound consequences. Indeed, the “eternal” and highly public nature of a criminal record in the United States may explain why people who have spent time in prison or been convicted of a crime face limited job and licensing opportunities, contributing to poverty and inequality.
Several states have confronted this problem by automatically sealing criminal records after several years have passed, limiting which employees and state agencies can access them. Called “clean slate” initiatives, these laws draw on enormous bipartisan support and have recently been enacted in states as varied as Pennsylvania, Utah, and Michigan. But New York lags far behind. To be sure, the state’s recent marijuana legalization law automatically expunges marijuana-related criminal records. But in most other cases people must still apply to have their records sealed, creating a serious administrative hurdle that prevents hundreds of thousands of people who are otherwise eligible from having their records sealed.
New York’s proposed clean slate law (S. 1553A / A. 6399) would create a schedule for the gradual phase-out of someone’s criminal record, provided they remain crime-free during the waiting period. In most cases, records of misdemeanors and felonies would be “sealed” one or three years after sentencing, respectively, which would make them inaccessible to most people. After five years (for misdemeanors) or seven years (for felonies), those records would then be expunged entirely, meaning the state could no longer even “confirm the existence” of the record. Law enforcement agencies would also be obligated to destroy fingerprints and other biometric information. For almost all practical purposes, the expunged record would simply cease to exist.
This is sweeping relief, and it would put New York at the forefront of the “clean slate” movement. Other states limit the types of criminal records available for sealing. In Utah, only some misdemeanors and lower-level offenses are “clean slate eligible.” And some states require a longer waiting period. Under Michigan’s new law, for example, most misdemeanors and felonies are automatically sealed after 7 and 10 years, respectively. The shorter timeline proposed in New York’s law might, however, be consistent with our understanding of recidivism, which shows that someone’s likelihood of returning to crime is highest in the initial years after release. It is also more consistent with peer nations, many of whom, according to Jacobs, treat conviction records as personal information entitled to privacy.
Research suggests that a “clean slate” law would have a significant effect on New York’s economy. A recent paper by J.J. Prescott and Sonja Starr of University of Michigan Law School shows a serious “uptake gap” in how many eligible people actually apply to have their record sealed, underscoring the importance of automatic sealing. It also showed a significant effect on both employment and wages among people who do receive sealing or expungement. Specifically, “within one year, an individual’s odds of being employed […] increase by a factor of 1.13,” and “reported quarterly wages increase by a factor of 1.23.” The paper also found very low recidivism rates among sealing recipients. Researchers will continue to study this issue for some time, but with such strong results there is no reason for policymakers to also delay.
Long road ahead
These bills represent a different approach to criminal justice reform — one aimed at tackling the long-term effects of the criminal justice system on people’s lives. But this approach is a vital complement to the reform legislation that New York has already passed.