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Expert Brief

Parole Reform and ‘Clean Slate’ in New York

The legislature’s hard work to build a fairer criminal justice system remains incomplete without policies that help people returning home from prison.

Published: April 21, 2021
post prison
Craig F. Walker / Contributor

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.