Sealed, But Not Expunged, In The Digital Age

In addition to a proposal to allow law students to take the bar a semester early if they promise to do pro bono their final semester, New York Court of Appeals Judge Jonathan Lippman raised another, tangentially related, issue that has long been on the agenda of the criminal defense bar: Expungement.

The bad news. His answer to expungement is “no.”  The not-quite-as-bad news:

“The stigma of a criminal record continues long after a sentence has been served,” Judge Lippman said. “Under this new policy,” he added, “individuals who have led a law-abiding lifestyle will not permanently be burdened by a single misdemeanor conviction, giving them a second chance.”

Nice words, but the devil, as always, is in the details.

He said he was submitting a draft bill to the Legislature that would expunge a misdemeanor conviction from a person’s record after seven years, and would allow a judge to erase nonviolent felony convictions after 10 years. Exceptions wound be made for sex offenses, public corruption and drunken driving.

See that word, expunge, in there? Don’t get too excited. That’s merely the word used by the article’s writer, James McKinley, who may be a competent wordsmith, but isn’t atop the legal meaning of such terms.  There will be no expungement. He’s such a tease.

In his speech, Judge Lippman also said he would begin sealing records of misdemeanors in April to avoid tarring otherwise law-abiding people with a criminal record that could hinder them in finding work and housing.

[T]he judge said the Office of Court Administration would no longer list misdemeanor convictions on records sold to the public if a person is not arrested again within 10 years. The records would be sealed, not expunged, he said. Criminal histories are often bought by companies vetting job applicants and sold in bulk to companies that do background checks.

While it’s certainly a positive that Judge Lippman recognizes the effect an insignificant misdemeanor conviction can have on all aspects of a person’s life, forever, his proposal fails to reflect a working knowledge of the internet.  Once a person’s criminal history is available online, sealing a conviction in the bowels of the Criminal Justice Agency records will have no impact whatsoever on that conviction being permanently available on the outside.

Convictions go into databases; there is no one being paid to take them out later, any more than there is anyone being paid to make sure the data is accurate.  Of course, they wouldn’t be in there in the first place if the state didn’t sell them to private parties so they could resell them online, but the state is well-past the point where it would be reluctant to sell anything it can to monetize people’s misfortune.

So the conditions of sealing are limited to one misdemeanor conviction, and only one. No sex offenses, public corruption and drunken driving, because that would be politically unpalatable, not withstanding the breadth of sex offenses to include such heinousness as public urination which would certainly be important in making employment decisions a decade later.  Ten years of good behavior in between, because all the harm that flows from disclosing misdemeanor convictions during that ten-year period immediately following isn’t a big enough problem to address.

And then, of course, the problem that the conviction won’t be expunged, but merely sealed after it’s had a decade of spreading around databases.  A defendant, now ten years beyond his public urination conviction for which he got a conditional discharge with one day community service, may not be able to uncheck the box, but can rest easy knowing that his conviction won’t be on the next list of misdemeanants sold. Oops, not so, as he’s a sex offender. Oh well.

Perhaps Judge Lippman is starting small, proposing a measure of monumental insignificance in order to get his nose under the tent of tough on crime legislators who might rip to shreds any legislation that would have a chance at providing meaningful relief for people convicted of minor offenses years ago, and have gone on to live productive, law-abiding lives.

Except that the underlying problem is most rampant with young men of color, who have enjoyed a decade of stop and frisk, been saddled with a couple of dubious misdemeanor pot possessions, and will struggle at best to find decent jobs so that they can live a decade of a productive, law-abiding life.

Rather than a start, this proposal strikes me as far more likely to be an opportunity for legislators to pat themselves on the back for being too kind by half to “criminals.”  And then it will die, awaiting the passing of the decade to see how well it worked out.

New York desperately needs an expungement statute, and one that offers a meaningful opportunity for people, regardless of the crime, to demonstrate that they should not be saddled with the stigma of conviction forever. This ain’t it.

But more important in the digital age, the selling of criminal histories to private parties will undermine any attempt to give people a way out from under the stigma of conviction. Even if a law is passed requiring these companies to vet old convictions from their databases, there will never be a way to assure that it happens, and there will never be a way to prevent secondary and tertiary resellers from complying.  Once the state sells someone’s worst moment, it will live on the internet forever.

“The stigma of a criminal record continues long after a sentence has been served,” Judge Lippman said. “Under this new policy,” he added, “individuals who have led a law-abiding lifestyle will not permanently be burdened by a single misdemeanor conviction, giving them a second chance.”

Nice words. No remedy. Not even close.  And sadly, I believe that Judge Lippman means those words and either doesn’t believe he can get the legislature to enact a statute that might offer any meaningful resolution, or isn’t willing to put his political capital as chief judge behind it.

7 comments on “Sealed, But Not Expunged, In The Digital Age

  1. Brett Middleton

    The way things are going, sooner or later almost everyone will have some sort of conviction on his/her record. If ALL the applications have a check in the box, the box will no longer be a stigma. Problem solved.

    1. SHG Post author

      Unfortunately, it won’t work that way, when they hit 50%, they just start over with the same group. The other half gets to watch it on the news.

  2. Thomas R. Griffith

    Sir, knock, knock. Thanks for bringing this (most recent) version of – Cherry Picking for Justice to our attention.

    Since this judge’s heart seems to be centered near where it should be, while obviously having some difficulty getting his idea to sync up with the reality of the potential harms when one chooses to pick in the dark, we can can only hope that someone / anyone runs with a better version. In the mean time, any idea as to who is the go to person to get the entire ball rolling in the right direction, in order to benefit the entire nation?

    One would think the people have had enough of the same ol same ol by now. Throw in Fake Expungement and the pile of krap just gets bigger. Would one of those be way off to assume that the threat or use of class action law suites be utilized to force states to address cruel and unusual lifelong punishment and the racket(s) born out of it.? As it is, humans of all shades of the color wheel are being tricked into thinking they’ve (or the nation’s defendants) served their debt to society once they are off so-called paper. Guilty or Not, one of the main reasons why the majority of people in prison & jail act right, is the promise or potential for release. To be released, only to be haunted for the rest of ones life over the vague information recorded in a file, (anyone with a buck can obtain and pass around) should explain why some chose to say screw-it as they unleash hell (or drive like a bat out of it) to avoid being arrested or detained. Some committing crimes just to get back to eating three times a day in a dry building. Thanks.

    *Of course, I always have more to say than most regarding this krap due directly to actually living it.
    As always, sorryaboutthat.

  3. Jeffrey Deutsch

    Why should various employers, schools, landlords, dating services, etc., not be able be able to decide for themselves to what extent to hold or not hold someone’s criminal past against them?

    (Not to mention on behalf of the many employees, students, residents, customers, visitors, etc., who rely on them for their safety?)

    Last time I checked, New York offers Certificates of Relief from Disabilities and Certificates of Good Conduct to help convicted criminals remake their lives? Why should the state go from adding information to subtracting it?

    1. SHG Post author

      First, criminal histories reveal, when they are correct (and they are often incorrect), the initial charge and guilty charge. They do not offer any detail, and are often worthless as information and easily misleading. False or misleading information does not help anyone, for safety or otherwise, but it is used nonetheless.

      Second, they are not intended to taint a person forever, and yet when a criminal history shows a conviction, even decades old or for something inconsequential, that often serves to immediately exclude someone. The mere existence is often enough for someone to be refused a job, housing, education, credit, etc., and this was never its purpose and is not a proper use of a criminal history.

      Third, many people plea for “convenience,” to get out of jail immediately rather than wait trial, to save the cost of representation, to be “done” with it, to avoid harsh consequences after going to trial, so that a guilty plea is not a trustworthy metric in any event.

      As for certificates of relief from civil disabilities, they do not offer any of the protections of expungement, and only serve to remove some of the penalties imposed by the government. It has nothing whatsoever to do with the issues here. As for “the last time you checked,” that’s an obnoxious phrase coming from someone who is as clueless as you.

  4. AOC

    No question an expungement law is long overdue in New York. FYI – public urination is not a sex offense in this state.

    1. SHG Post author

      Yeah, but it’s long been my “go to” example for the insanity of sex offense registries in general, so it’s force of habit. But you’re right, and thanks for correcting.

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