The New York Times | Criminal Convictions Behind Them, Few Have Had Their Records Sealed
By Jan Ransom
July 4, 2018
Carlos grew up in the Bedford-Stuyvesant section of Brooklyn in the 1990s, then a rough-and-tumble neighborhood where he struggled to stay out of trouble. He later moved with his wife and two children to the South Bronx, where he made a career as a taxi driver.
But he remained haunted by his past and wondered how different his life could have been if he didn’t have a criminal record.
At 18, Carlos, who asked that his last name not be used to protect his privacy, said he was addicted to drugs and alcohol when he and his friends stole a bicycle from another teenager while hanging out near the Williamsburg Bridge in 1997. He was convicted of third-degree robbery, a class D felony in 1998, and sentenced to 18 months at the Downstate Correctional Facility in Fishkill and served over two years probation.
After his release, he said he had trouble finding steady work and many employers fired him after learning of his conviction. He worked odd, usually low-paying jobs as a tow-truck driver, a messenger, a plumber, a mover and as an unlicensed security guard before joining the now-struggling yellow taxi industry.
Now 40, Carlos, with help from the Legal Aid Society’s Conviction Sealing Project, has filed an application in State Supreme Court in Brooklyn to have his conviction sealed under a new state law.
He said he hopes the court will grant him the second chance he has dreamed of: “I want to do better for my children and myself.”
Under the law, which went into effect in October, a person with a conviction that is at least 10 years old can apply to have their record sealed. An applicant cannot have more than two misdemeanor convictions or one felony conviction and one misdemeanor conviction. People with certain convictions, such as violent felonies and sex offenses, are not eligible.
Once a record is sealed, the conviction would no longer be found through searches of public records. However, law enforcement agencies and employers for jobs that require a firearm could still access those records. If asked by a potential employer, a person must disclose any prior convictions that are not sealed, according to the Department of Labor.
“It’s a big improvement from what we had, but it’s not a true clean slate,” said Emma Goodman, a staff lawyer at the Legal Aid Society who is leading the Conviction Sealing Project. Still, she said, the law is a step in the right direction. “The more people who can get good jobs,” she said, “the less likely they are to end up in a situation where they’re getting arrested.”
As of the end of May, the latest numbers available, 346 people statewide had had their convictions sealed; about a third of them are from New York City. Defense lawyers, advocates and prosecutors said that number was much lower than they had expected. They attributed it, in part, to the difficulty in determining how many people are eligible for the program and where they live.
“We are operating in the dark,” said Wesley Caines, a re-entry and community outreach coordinator for the Bronx Defender Services, a nonprofit. “In the Bronx, there are some communities that have candidates for sealing, but we don’t know who they are or how many.”
The lack of information makes it hard to create targeted educational campaigns to inform people about the new law, Mr. Caines said.
The Office of Court Administration and the Division of Criminal Justice Services cannot estimate how may people might be eligible because several factors can make someone ineligible, such as an out-of-state or federal conviction that would not appear on their New York record. But Ms. Goodman, who said she has helped 32 people apply to seal their records, said hundreds of thousands of people could be eligible.
In New York City, lawyers and prosecutors said the process is not without challenges. People who have tried to have their records sealed without a lawyer are sometimes given the runaround or turned away, Ms. Goodman said. Some lawyers charge exorbitant fees to help people with their applications and the online application instructions can be confusing, advocates said.
People have also submitted incomplete applications or have mistakenly mailed their applications to the state attorney general’s office instead of with the district attorney’s office, said Robert J. Masters, an executive assistant district attorney in Queens. Applicants must file a motion with the court they were convicted in and must give a copy to the district attorney’s office that prosecuted the case.
Most of the applications in Queens were completed without help from a lawyer, Mr. Masters said. “Which is probably why a lot are ineligible,” Mr. Masters said.
Defense lawyers and advocates also say that the law leaves out scores of people — mostly blacks and Hispanics — who, because they live in heavily policed communities, are more likely to have multiple convictions for minor offenses. A recent New York Times investigation found that in the past three years, black residents were arrested on low-level marijuana charges at eight times the rate of white people.
“You see a lot of people who with that first conviction then have a number of other smaller convictions,” said Alison Wilkey, the director of public policy at the Prisoner Re-entry Institute at John Jay College of Criminal Justice in Manhattan.
A criminal record can limit a person’s employment and housing opportunities, making it difficult for them to transition back into their communities.
Carmen, 52, a married mother of two who lives in the Bronx, was convicted of fourth-degree grand larceny for stealing money from her employer, Nick Lugo Travel Agency. She said she was desperate at the time, and took the money when she began falling behind on the rent she had to pay the agency. She was sentenced to five years probation. That was 15 years ago, and now Carmen, whose conviction was recently sealed, is looking forward to a fresh start and getting the hospital job she has always wanted.
“This incident was almost like a stain on my soul,” said Carmen, who also asked that her last name not be used. “I want to do this for myself and leave it in the past.”
Many other states have laws that seal and expunge, or erase, some criminal records.
Two years ago, New Jersey lawmakers cut from 10 years to five years the time a person must wait to seek to have their record expunged. In Nevada, a person can seek to have a conviction sealed after one to 10 years based on the type of conviction.
New York State, however, does not expunge convictions.
“New York is a very challenging place to live for anyone, with hurdles constantly set up. Every job, every opportunity there’s hurdles,” said Tara Moss, a lawyer who does pro bono work for the law firm Winston & Straw, which is a partner on the Conviction Sealing Project. “Having a conviction, even a minor one, it puts up another hurdle. We’re trying to give people a leg up.”