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Written Testimony Submitted to the New York Senate Standing Committee on Codes

On May 6, the Brennan Center for Justice submitted written testimony to the New York State Senate Standing Committees on Codes at the Hearing Concerning S. 1553A (Automatic Expungement). The testimony, presented by Senior Counsel Ames Grawert at a virtual hearing on the bill, advocates for the adoption of this so-called “clean slate” law.

Last Updated: May 6, 2021
Published: May 5, 2021

Written Testimony Submitted to the Senate Standing Committee on Codes at the Hearing Concerning S. 1553A (Automatic Expungement)

The Bren­nan Center for Justice at New York Univer­sity School of Law welcomes the chance to testify in support of S. 1553A, a “clean slate” act for New York. foot­note1_bpbrtxn 1 The Bren­nan Center is a nonpar­tisan public policy and law insti­tute that focuses on the funda­mental issues of demo­cracy and justice, and conducts rigor­ous research to better under­stand — and identify policy solu­tions that will help over­come — the collat­eral consequences of mass incar­cer­a­tion. The opin­ions expressed in this testi­mony are only those of the Bren­nan Center, and do not neces­sar­ily reflect the opin­ions of NYU School of Law. Draw­ing on rigor­ous empir­ical research, the Bren­nan Center’s nonpar­tisan experts work to raise aware­ness of the connec­tion between poverty and crim­inal justice involve­ment, and advoc­ate for policies that — like S. 1553A — would help break that link. We commend the Commit­tee for hold­ing a hear­ing on this import­ant legis­la­tion and urge the Senate to pass it.

For the moment, New York contin­ues to lag other states in the adop­tion of so-called “clean slate” laws, which auto­mat­ic­ally phase out old crim­inal records with the passage of time. Enact­ing S. 1553A would, at a stroke, place New York instead near the fore­front of this move­ment, and make the state a leader in provid­ing economic oppor­tun­it­ies for people who have inter­ac­ted with the crim­inal justice system. The ongo­ing coronavirus pandemic and related reces­sion make this matter espe­cially urgent. We urge the Senate to act without delay to pass this legis­la­tion.

I. Exper­i­ence with the Crim­inal Justice System Reduces Earn­ings for Decades, Creat­ing a System of Perpetual Punish­ment.

Auto­matic expun­ge­ment laws aim to expand economic oppor­tun­ity for people who have returned to their communit­ies after spend­ing time in prison or being convicted of a crime. That relief is sorely needed. All too often, the prom­ise of a “second chance” after a crim­inal convic­tion proves illus­ory, even in New York, contrib­ut­ing to poverty and economic inequal­ity statewide.

Recent research by the Bren­nan Center starkly illus­trates this prob­lem, show­ing that in the United States, convic­tion and impris­on­ment can impact someone’s abil­ity to earn a living wage for decades. Accord­ing to our research, people who have spent time in prison earn roughly half as much annu­ally as socioeco­nom­ic­ally similar people. foot­note2_5oeykpu 2 Terry-Ann Craigie, Ames Grawert, and Cameron Kimble, Convic­tion, Impris­on­ment, and Lost Earn­ings: How Involve­ment with the Crim­inal Justice System Deep­ens Inequal­ity, Bren­nan Center for Justice, 2020, 14–15, https://www.bren­nan­cen­–09/Econom­icIm­pact­Re­port_pdf.pdf. These conclu­sions are in line with other research, some of which also docu­ments high unem­ploy­ment among formerly imprisoned people. See id., 25–26.  And this earn­ing reduc­tion does not fade with time. In fact, the earn­ings of formerly imprisoned people never truly “catch up” to those of people who are other­wise similar to them. Aver­age earn­ings lag their peers even decades later. Over the course of a career, this earn­ing gap reaches nearly half a million dollars. foot­note3_w9seps0 3 Craigie et al., Convic­tion, Impris­on­ment, and Lost Earn­ings, 17–20.

Our research shows that convic­tion of a crime, even without time in prison, also entails a signi­fic­ant and long-term reduc­tion in earn­ing poten­tial. People with a crim­inal convic­tion earn roughly $100,000 less over the course of a career, compared to socioeco­nom­ic­ally similar people. Even a relat­ively minor crim­inal record appears to reduce earn­ings. Convic­tion of a misde­meanor, we found, cut annual earn­ings by an estim­ated 16 percent. foot­note4_h97b­b6w 4 Craigie et al., Convic­tion, Impris­on­ment, and Lost Earn­ings, 14–15, 17.  These effects are felt first and most profoundly by those already facing poverty or other chal­lenges. foot­note5_i7o1­fua 5 People who spend time in prison tend to have earned relat­ively little money even before their incar­cer­a­tion, suggest­ing that justice-involved people and their famil­ies face other socioeco­nomic hard­ships. See Berna­dette Rabuy and Daniel Kopf, Pris­ons of Poverty: Uncov­er­ing the Pre-Incar­cer­a­tion Incomes of the Imprisoned, Prison Policy Initi­at­ive, 2015, https://www.pris­on­

The rami­fic­a­tions for New York are also profound. In a recent public­a­tion, we estim­ate that there are roughly 337,400 people in New York alive today who have spent time in prison. Every year, then, reduced earn­ing poten­tial asso­ci­ated with time in prison may reach as high as $1.9 billion, with communit­ies of color dispro­por­tion­ately bear­ing this burden. foot­note6_ca2w­b71 6 Ames Grawert, Cameron Kimble, and Jackie Field­ing, Poverty and Mass Incar­cer­a­tion in New York: An Agenda for Change, Bren­nan Center for Justice, 2021, 9 https://www.bren­nan­cen­­tions/poverty-and-mass-incar­cer­a­tion-new-york-agenda-change. Note that $1.9 billion is a rough estim­ate arrived at by extra­pol­at­ing from national earn­ings-loss estim­ates. Actual earn­ings losses may be smal­ler or, in fact, even larger. Unfor­tu­nately, we do not believe that greater preci­sion is possible given the limits of exist­ing data. See id., 9 n.24.  Unfor­tu­nately, data limit­a­tions preven­ted us from estim­at­ing the aggreg­ate economic impact of convic­tions on New York­ers. But it is likely quite large. Accord­ing to Governor Andrew Cuomo, in 2016, approx­im­ately 2.3 million New York­ers had “a crim­inal convic­tion on their record.” foot­note7_ool0q01 7 Gov. Andrew M. Cuomo, “Governor Cuomo Announces First in the Nation Regu­la­tion to Prohibit Insur­ance Compan­ies from Deny­ing Cover­age to Busi­nesses Seek­ing to Hire Formerly Incar­cer­ated New York­ers,” Decem­ber 21, 2016,­la­tion-prohibit-insur­ance-compan­ies-deny­ing-cover­age.

Taken together, our research suggests that exper­i­ence in the crim­inal justice system — includ­ing convic­tion of a relat­ively minor offense — places indi­vidu­als at greater risk of poverty, and imper­ils the economic well­being of entire communit­ies.

Many differ­ent aspects of our soci­ety combine to create this connec­tion between convic­tion, impris­on­ment, and poverty. One contrib­ut­ing factor is undoubtedly the preval­ence of crim­inal record inform­a­tion. foot­note8_b3hooqs 8 For a brief discus­sion of how a crim­inal record can negat­ively impact economic well­being, see Craigie et al, Convic­tion, Impris­on­ment, and Lost Earn­ings, 13. For a discus­sion of punit­ive excess in Amer­ican soci­ety and its philo­soph­ical roots, see Jonathan Simon, “Losing our Punit­ive Civic Reli­gion,” Bren­nan Center for Justice, April 13, 2021, https://www.bren­nan­cen­­ion/losing-our-punit­ive-civic-reli­gion.  Crim­inal records in the United States tend to be both public and perman­ent. foot­note9_n5gs6f3 9 James B. Jacobs, The Eternal Crim­inal Record (Cambridge, MA: Harvard Univer­sity Press, 2015), 119–24 & nn. (noting other nations that allow crim­inal record inform­a­tion to become a nullity over time), 190–93 (summar­iz­ing the differ­ences between Amer­ican and European hand­ling of crim­inal record data).  They can also make it diffi­cult for people to parti­cip­ate in the essen­tial elements of daily life. Employ­ers may screen out applic­ants with a crim­inal record; licens­ing rules may make people ineligible for entire career paths. foot­note10_l8wkem4 10 For a summary of collat­eral consequences in New York State, see New York State Unified Court System, “Collat­eral Consequences,” last accessed May 3, 2021,­thelp/Crim­inal/collat­er­al­Con­sequences.html.  Worse, these “collat­eral consequences” continue long after the under­ly­ing convic­tion has faded into the past. As the late NYU Law School professor James Jacobs put it, “[a] crim­inal record is for life; there is no stat­ute of limit­a­tions.” foot­note11_w2x7euo 11 Jacobs, The Eternal Crim­inal Record, 4–5.

II. S.1553A’s Auto­matic Seal­ing and Expun­ge­ment Provi­sions Would Ease These Burdens and Create Real Second Chances for New York­ers.

Seal­ing and expun­ge­ment laws address these hard­ships by restrict­ing who can access crim­inal record inform­a­tion. We were pleased to see the legis­lature pass a major new seal­ing law in 2017, permit­ting New York­ers to apply to have some types of crim­inal records sealed. foot­note12_lr5ymgy 12 Grawert et al., Poverty and Mass Incar­cer­a­tion in New York, 16–17 (summar­iz­ing exist­ing law). Note that this report pred­ates marijuana legal­iz­a­tion in New York, which provided for the auto­matic expun­ge­ment of marijuana offenses. See Gov. Andrew M. Cuomo, “Governor Cuomo Signs Legis­la­tion Legal­iz­ing Adult-Use Cannabis,” March 31, 2021,­la­tion-legal­iz­ing-adult-use-cannabis.  Unfor­tu­nately, this law appears to be under­u­til­ized, with recent report­ing suggest­ing that a vanish­ingly small portion of eligible New York­ers have success­fully applied to have their records sealed. foot­note13_lnp7rk8 13 Aaron Morrison, “Nearly 600,000 New York­ers Are Eligible to Have Their Records Sealed. Fewer than 1,800 Have Succeeded.,” The Appeal, Octo­ber 8, 2019,­ers-are-eligible-to-have-their-records-sealed-fewer-than-1800-of-them-have-succeeded/.  Research­ers have docu­mented this “uptake gap” else­where, too, indic­at­ing that admin­is­trat­ive barri­ers — such as complex paper­work, or the need to hire an attor­ney — may prevent many eligible people from apply­ing for record seal­ing. foot­note14_d8zconf 14 See J. J. Prescott and Sonja B. Starr, “Expun­ge­ment of Crim­inal Convic­tions: An Empir­ical Study,” Harvard Law Review 133, no. 8 (2020): 2489, https://repos­it­­con­tent.cgi?article=3167&context=articles (“Of eligible indi­vidu­als, only 6.5% receive expun­ge­ments within five years of becom­ing eligible.”). For an analysis present­ing poten­tial reas­ons for this update gap, see id., 2501–06.

  1. 1553A would solve this prob­lem by fully auto­mat­ing the seal­ing and expun­ge­ment process. Under the proposed auto­matic expun­ge­ment system, old crim­inal records would be phased out in two steps. Crim­inal records would first be “sealed” after either one year (for a misde­meanor) or three years (for a felony) have passed since senten­cing. Sealed records would remain access­ible to courts and prosec­utors, ensur­ing that law enforce­ment offi­cials can rely upon them in future crim­inal cases. foot­note15_ibneqgn 15 S. 1553A, § 1, 2021–2022 Sess. (N.Y. 2021), https://www.nysen­­la­tion/bills/2021/s1553/amend­ment/a (creat­ing N.Y. Crim. Proc. Law § 160.57(1)).  In many other respects, though, a sealed record would be func­tion­ally removed from public view. Most import­antly, once a crim­inal record has been sealed, S. 1553A would permit someone to legally deny the record’s exist­ence in a hous­ing, licens­ing, or job applic­a­tion — sharply limit­ing the stigma of a crim­inal convic­tion in these compet­it­ive markets. foot­note16_uxa3nej 16 S. 1553A, § 5 (amend­ing N.Y. Exec. Law § 296.16).

Next, after five or seven years have passed since senten­cing (or release from prison), records would be auto­mat­ic­ally expunged. foot­note17_9ii1aou 17 S. 1553A, § 1 (creat­ing N.Y. Crim. Proc. Law § 160.57(2)).  Expun­ge­ment limits access to a crim­inal record even further; an expunged record would become, in most cases, a legal nullity. State actors would be precluded from even confirm­ing the exist­ence of the record, and law enforce­ment agen­cies would be required to destroy finger­prints related to the record. foot­note18_am7j5os 18 S. 1553A, § 1 (creat­ing N.Y. Crim. Proc. Law § 160.57(3), (4), (6)).  Notably, though, and as discussed in more depth on the next page, expunged records would remain access­ible in some import­ant cases — such as, applic­a­tions for fire­arm permits — to protect public safety.

Several states have success­fully adop­ted auto­matic expun­ge­ment laws. But S. 1553A would place New York near the fore­front of the bipar­tisan clean slate move­ment, by making seal­ing avail­able to more people, and sooner, than most other juris­dic­tions. foot­note19_xqn3jur 19 For a discus­sion of the broad, bipar­tisan support for clean slate initi­at­ives, see “Why States Are Rush­ing to Seal Tens of Millions of Old Crim­inal Records,” The Econom­ist, Novem­ber 14, 2019, https://www.econom­­ing-to-seal-tens-of-millions-of-old-crim­inal-records; see also Jessica Miller, “Utah Lawmakers Pass the ‘Clean Slate’ Bill to Auto­mat­ic­ally Clear the Crim­inal Records of People Who Earn an Expun­ge­ment,” Salt Lake Tribune, March 14, 2019, (noting the unan­im­ous passage of Utah’s clean slate law).  In Utah, for example, only relat­ively low-level offenses are eligible for auto­matic seal­ing. foot­note20_coda2y2 20 Utah Code Ann. § 77–40–102(5) (Lexis­Nexis 2020) (defin­ing “clean slate eligible case” to include some misde­meanor cases ending in convic­tion).  Two neigh­bor­ing states — Pennsylvania and New Jersey — also provide for auto­matic seal­ing, but with signi­fic­ant exclu­sions. Both also have relat­ively long, ten-year wait­ing peri­ods. foot­note21_xn33b6w 21 18 Pa. Cons. Stat. § 9122.2 (2020) (defin­ing eligible crimes and provid­ing a ten-year wait­ing period); N.J. Stat. Ann. § 2C:52–5.4 & 2C:52–2(b)–(c) (West 2020) (requir­ing the state to “develop and imple­ment an auto­mated process” for auto­matic seal­ing after a ten-year wait­ing period, and making certain offenses ineligible, respect­ively).  By contrast, S. 1553A reaches all offenses and, espe­cially in the case of misde­mean­ors, provides prompt relief to people who may urgently need it to find a new job, or a place to live. foot­note22_z9phxe1 22 While S. 1553A’s wait­ing period is short compared to some other states, it is not without preced­ent. See Prescott and Starr, “Expun­ging Crim­inal Convic­tions,” 2482 n.116 (identi­fy­ing several states that permit applic­a­tions for seal­ing in the one-to-five-year range). Indeed, under Cali­for­ni­a’s recently-passed “clean slate” law, start­ing in July 2022, all convic­tions ending in proba­tion will be auto­mat­ic­ally sealed imme­di­ately after the term of super­vi­sion success­fully concludes. Misde­meanor convic­tions not ending in proba­tion will be sealed after one year. Cal. Penal Code § 1203.425(a)(1)(B)(v) (Deer­ing 2020).

This signi­fic­ant expan­sion of New York’s seal­ing laws would go a long way toward redu­cing the economic consequences of a crim­inal record. In one recent analysis, Univer­sity of Michigan law profess­ors J.J. Prescott and Sonja Starr analyzed the impact of Michigan’s pre-2011 law, which permit­ted people to apply for record seal­ing after five years. foot­note23_aq5x154 23 Prescott and Starr, “Expun­ging Crim­inal Convic­tions,” 2481–83 (summar­iz­ing relev­ant law).  They found that people whose records were sealed gained “nearly eight percent­age points in their employ­ment rate,” and “an aver­age of $1,111 in quarterly wages.” foot­note24_eu1el8u 24 Prescott and Starr, “Expun­ging Crim­inal Convic­tions,” 2527–29. Another way to present these find­ings is that after seal­ing, “an indi­vidu­al’s odds of being employed . . . increase by a factor of 1.13; their odds of earn­ing at least $100/week . . . increase by a factor of 1.23.” Id., 2467. The authors note that other factors may partially explain their results but, after addi­tional tests, conclude that a causal rela­tion­ship exists between seal­ing and the employ­ment gains observed in the data. Id., 2533–41.  People who benefited from record seal­ing also had relat­ively low rates of recidiv­ism. foot­note25_rppl3th 25 Prescott and Starr, “Expun­ging Crim­inal Convic­tions,” 2512–17.  Consid­er­ing that S. 1553A’s provi­sions would help more people, sooner, its effects could poten­tially be even more pronounced. foot­note26_4t6h0g0 26 Indeed, draw­ing on a supple­mental analysis, Prescott and Starr reach the same conclu­sion, predict­ing that auto­matic expun­ge­ment would also increase employ­ment and earn­ings. Prescott and Starr, “Expun­ging Crim­inal Convic­tions,” 2539–40.

III. S.1553A’s Expun­ge­ment Provi­sions are Also Consist­ent with Public Safety.

Addi­tion­ally, S. 1553A contains several import­ant provi­sions designed to protect public safety. For one, convic­tion of any new crime would restart the wait­ing peri­ods for auto­matic seal­ing and expun­ge­ment. Convic­tions entail­ing any form of community super­vi­sion — i.e., parole — would also be ineligible for seal­ing or expun­ge­ment until super­vi­sion has ended. Simil­arly, people convicted of sex offenses would be unable to seal those convic­tion records for as long as they remain on the sex offender registry. These provi­sions ensure that auto­matic seal­ing and expun­ge­ment would not permit people to circum­vent lawfully imposed sentences. foot­note27_qlq9n5d 27 S. 1553A, § 1 (creat­ing N.Y. Crim. Proc. Law § 160.57(1)(b)(iii)–(iv), (2)(b)(iii)–(iv)). Note that some sex offender regis­tra­tion require­ments last for a life­time. N.Y. Corr. Law § 168-h (Consol. 2020).

Further­more, even once expunged, crim­inal records would remain avail­able for some import­ant purposes. For example, an expunged record would be discov­er­able if someone applied for a law enforce­ment job or a fire­arm permit. foot­note28_ebe77m6 28 S. 1553A, § 1 (creat­ing N.Y. Crim. Proc. Law § 160.57(4)(g)–(h)).  Prosec­utors would also be able to draw upon expunged records in some specified cases. foot­note29_ix8d­jyj 29 See S. 1553A, § 1 (creat­ing N.Y. Crim. Proc. Law § 160.57(4)(b)).

Lastly, S. 1553A’s “wait­ing peri­ods” for seal­ing and expun­ge­ment appear consist­ent with our under­stand­ing of recidiv­ism. One notable analysis by the New York Depart­ment of Correc­tions and Community Super­vi­sion followed people released from prison in 2014 for three years, and concluded that people are most likely to return to prison — if at all — within the first two years after release. Indeed, 84 percent of people who returned to prison within the study period did so within the first twenty-four months. foot­note30_g8rs5w8 30 2014 Inmate Releases: Three Year Post-Release Follow-Up, New York State Depart­ment of Correc­tions and Community Super­vi­sion, 5,­ments/2021/03/inmate-releases-three-year-out-post-release-follow-up-2014.pdf.  This early peak and dramatic drop-off in recidiv­ism paral­lels national research, which suggests that re-arrest rates peak early and level off after around five years. foot­note31_l8ur51q 31 See Mariel Alper, Matthew R. Durose, and Joshua Mark­man, 2018 Update on Pris­oner Recidiv­ism: A 9-Year Follow-Up Period (2005–2014), Bureau of Justice Stat­ist­ics, 2018,­tail&iid=6266. For a discus­sion of research on recidiv­ism rates, see Dana Gold­stein, “The Mislead­ing Math of ‘Recidiv­ism,’” The Marshall Project, Decem­ber 4, 2014, https://www.them­arshall­pro­­ing-math-of-recidiv­ism.  While some people may commit a crime after having a prior record sealed, such incid­ents should prove relat­ively rare.

* * * * *

The Bren­nan Center urges the Legis­lature to pass S. 1553A and commit to expand­ing economic oppor­tun­it­ies for people who have a crim­inal record. Provid­ing such “second chances” is in the best interest of all New York­ers and consist­ent with public safety. It is also the right thing to do.

End Notes