State bar backs bill to seal criminal records

As reported here in the New York Times (and elsewhere), the New York State Bar Association is proposing legislation that would seal criminal records for misdemeanor and certain nonviolent felonies in New York. The law would imposed a waiting period of five years for misdemeanor convictions and eight years for a felony before the records were sealed. Subsequent arrests and convictions would result in the un-sealing of the records.

It is unclear whether this bill will go anywhere, but it deserves support. A surprising number of people have a minor run-in with the law at some point in their lives. As it stands, convictions stemming from youthful lapse of judgment--including for minor drug possession or DWI--stay with a person for life. Employers are increasingly using criminal background checks, to say nothing of the long (ridiculous?) list of professions that are licensed in New York, where a conviction will disqualify applicants from obtaining a license (including, as the article notes, licenses for barbers and boxers).

The only relief currently available to a person convicted of a crime is to obtain a Certificate of Relief from Civil Disabilities from a judge. The Certificate is basically a piece of paper that prevents the automatic forfeiture of a right or denial of a license based on the fact of conviction. Note well the word "automatic." A licensing agency or employer is still free to exercise its discretion to take the conviction into consideration when deciding whether to issue the license or hire a person convicted of a crime. The Certificate creates a presumption that the person has been rehabilitated, but it does not guarantee that a licensing agency or employer will ignore the fact of conviction.

Note, too, that the new legislation would not provide a procedure for a defendant to expunge* a criminal conviction. Despite rumors to the contrary circulating in most of the correctional facilities that make up New York's fine prison system, there is no way for a person convicted of a crime to expunge his criminal record in New York.

* "Expunge" means the record of conviction is obliterated from the system, as opposed to simply restricting access to a record that is sealed.