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November 16, 2023

New Clean Slate Act signed into law in New York with an estimated five million criminal records to be sealed

As reported in this New York Times piece, "roughly two million people convicted of crimes in New York may be eligible to have their records sealed as part of a broad criminal justice initiative that was signed into law on Thursday by Gov. Kathy Hochul."  Here is more:

Under the so-called Clean Slate Act, people who complete their sentences and remain out of trouble for a set period — three years for misdemeanors, eight for eligible felonies — will have their convictions sealed.  The most serious crimes, including sex crimes, murder and most other class A felonies, will not be eligible for automatic sealing.

New York is now one of a dozen states that have enacted such laws, which are aimed at interrupting the cycle of recidivism by enabling formerly incarcerated people to access jobs and housing. The law will go into effect a year from now, though it will take three more years to clear the records of those currently waiting.

Ms. Hochul said that she was proud to sign the legislation, which she said would provide economic opportunities while protecting public safety. “The best crime-fighting tool is a good-paying job,” she said.

The bill’s signing is a victory for criminal justice advocates who spent years lobbying stakeholders on behalf of the measure. By the time it passed New York’s Democrat-dominated Legislature earlier this year, it boasted an impressive coalition of business, labor, government and advocacy groups who preached of its economic, moral and public safety benefits.

Indeed, one of the biggest ostensible hurdles was Ms. Hochul herself, who over her two years in power has split with progressives over some criminal justice measures, citing public safety concerns.  While Ms. Hochul was supportive of the general concept of the initiative, and included a scaled-back version in her legislative agenda last year, she expressed concern over the scope of the initial bill.

Ultimately, the governor was able to extract concessions from its sponsors before its passage, including an extended waiting period and liability protections for businesses that hire people who have criminal records.  Records will remain visible to law enforcement and court personnel, as well as certain sensitive employers.  Unlike previous iterations of the bill, the final version makes all class A felonies, except those related to drug possession, ineligible for sealing.

The concessions helped to quiet opposition, including from law enforcement groups.  While the major sheriffs', police and prosecutors’ associations have not backed the measure, they have refrained from publicly criticizing it.

An analysis from the Division of Criminal Justice Services showed that roughly 1 million felonies and up to 4 million misdemeanor convictions would be eligible for sealing....

Many Republicans still oppose the legislation, saying it may seal records that they believe ought to remain public.  They point to the existing process for sealing records, in which a judge approves each request.

Senate Minority Leader Robert Ortt, who represents the Niagara Falls area, said he was disappointed in Ms. Hochul’s decision and skeptical of the law’s projected economic benefits.  “I do not think this is going to solve the employee shortage that our employers are seeing here,” he said.  “We continue to pass legislation like this that is really geared toward those who have broken the law, the criminal class, and not those who might be victims,” he lamented.

November 16, 2023 at 12:45 PM | Permalink

Comments

beware of the pool, blue bottomless pool

Posted by: federalist | Nov 16, 2023 1:00:54 PM

I would have also thought that most checks of this sort go to a private data supplier, one that already has the data and is under no duty to go along with the state's sealing effort.

Posted by: Soronel Haetir | Nov 16, 2023 3:55:15 PM

Doug, any insights on SH's point?

Posted by: federalist | Nov 16, 2023 6:42:34 PM

Yep, this is often a problem with record sealing efforts. Here are just a few short and long pieces discussing it in various ways:
https://www.courtnewsohio.gov/inDepth/2021/May/default.asp
https://www.wired.com/story/criminal-justice-transparency-law-data-brokers/
https://illinoislawreview.org/wp-content/uploads/2023/10/Lageson.pdf

Some states have laws to request/urge/require some third party databases to update their records, but I am not sure of their true efficacy.

Posted by: Doug B | Nov 16, 2023 11:02:06 PM

https://nypost.com/2023/11/15/opinion/hochul-is-about-to-sign-the-clean-slate-act-putting-more-new-york-lives-in-jeopardy/

Doug, I don't think that the state can order a third-party database to expunge the record. If it tries, there should be prison for the bureaucrats who try to enforce the law.

Posted by: federalist | Nov 17, 2023 10:38:57 AM

I would say that request is fine, anything more than that raises major 1A concerns.

Posted by: Soronel Haetir | Nov 17, 2023 11:26:33 AM

I am not a data privacy/1st A expert, federalist, but there would seem to be relevant legal distinctions between a state/federal law that required private actors to update databases for accuracy (eg, to no longer report a person is in prison or on community control if they have long since been released) and a law that required private actors to scrub accurate data from an existing database. Moreover, states can arguably encourage private actors to manage government data in various ways --- eg, providing funding only for certain "data best practices" that update criminal records, authorizing civil actions against databases that misuse or misrepresent data in certain ways, etc.

Again, the law and limits around private data realities are not ones I know much about, but I sense that one talking points around "clean slate efforts" is that sealing records en masse may make it more likely private data collectors will be inclined to more regularly update their data.

Posted by: Doug B | Nov 17, 2023 12:03:14 PM

We shall see what happens with this.

Posted by: federalist | Nov 17, 2023 12:54:45 PM

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