Testimony: Allowing Adult Use of Marijuana

Judith Whiting



October 16, 2018
Judith M. Whiting, General Counsel CSS. 

The Community Service Society of New York (CSS) uses a multifaceted approach to attack income inequality in New York. CSS has been at the forefront of this work for 175 years, changing our strategy and focus as the times demand. Today we engage in policy work, legislative advocacy, impactful direct services programs and litigation in order to help create a fairer, stronger New York. We very much appreciate this opportunity to discuss our views on A. 305-B, visionary legislation that will make significant positive change in the lives of millions ofNew Yorkers and help make their dream of full participation in society a reality.

I am General Counsel for CSS and direct the work of its Legal Department. In my testimony today, I will discuss Assembly Bill 3506-B in context of CSS’s important work in criminal records sealing, our coalition-based campaign for criminal records expungement legislation and our experiences with the current sealing laws, and will make recommendations for changes in the legislation based on the foregoing.

Knowing that a criminal conviction history can act as one of the steepest barriers to securing living-wage employment and housing, and to full participation in the life of our City and state, almost a decade ago CSS’s Legal Department began to focus solely on working with and for persons with these histories. Because discriminatory policing and prosecution practices have ensnared people of color for decades, criminal records are disproportionately borne in New York State. We litigate on behalf of individuals and groups who have suffered actionable discrimination because of their records and engage in policy and legislative advocacy to make systemic change.

CSS also provides direct services to more than 700 New Yorkers each year through our Legal Department’s Next Door Project, working with clients from across the City to obtain, correct mistakes in and closely review their New York State rap sheets. Our one-on-one review sessions are confidential and respectful, ensuring that our clients obtain the firm knowledge of their record that is the essential component of Next Door Project work. We provide Next Door Project services at partner agencies’ offices in downtown Brooklyn, Bedford Stuyvesant, Harlem, the South Bronx and Manhattan’s Lower East Side as well as at CSS’s midtown headquarters andhave provided services for clients of the NYC Dept. of Probation. A Next Door Project brochure is included with this testimony.

CSS clients’ experiences and input guide our work in the Legal Department. When clients informed us that their employment applications were being tossed in the trash once they revealed a past criminal conviction or – for larger employers – that they were bounced out of online employment application portal once they checked “yes” next to the question about whether they had ever had a criminal conviction, we understood that systemic change was required. We worked closely with VOCAL/NY, Faith in New York and the National Employment Law Project to draft and ensure passage of the New York City Fair Chance Act, among the strongest “ban the box” laws in the nation. CSS acted as chief legal advisor in this effort. We are beyond pleased that the law is indeed working as it was intended to: giving individuals with conviction histories a fair chance to compete for employment on their merits.

But some continue to suffer ongoing discrimination, stigma and exclusion from community based on past criminal convictions. We know this because our clients tell us so, and we see this discrimination in action. Each Next Door Project rap sheet intake session invariably involves our lowering expectations of clients who believe that we can expunge their stale conviction histories. We have to tell them that there is currently no criminal records expungement in New York, and very limited sealing. This is a major disappointment to many who have found New York’s matrix of antidiscrimination laws unhelpful and believe – because they have been told by others – that if they managed to stay out of trouble for at least seven years, their records could be erased and seek our help in doing so. We have very little to offer them.

For these reasons CSS decided to create and lead a grassroots statewide Expungement Campaign, moving hearts and minds toward the necessity of enacting laws that will erase stale conviction records, so they can no longer be used to keep them from fully engaging with family and community, and supporting themselves and those they love. We hired a community organizer and are now moving full steam ahead. We are talking with legislators, community leaders and others, and have already engaged the Governor’s office in discussions about how expungement is right for New York and how it can be achieved. Incremental change to existing legislation will help move the effort forward, and we are working with coalition partners in developing specific proposals.

The Expungement Campaign, which already has gained supporters across the state, was officially launched on October 11 by way of a three-day conference. “Full Participation is a Human Right: Moving Beyond Punishment” allowed CSS and our audience to explore with faith leaders, directly impacted individuals, labor leaders, elected officials, activists, artists and others the many ways in which a criminal conviction history can hold an individual back from moving forward, and to discuss what could be done to change this reality. A copy of “Getting to Go: the case for criminal record expungement in New York,” the case statement issued in connection with that conference, is included with this testimony.
Among many other events, CSS’s conference featured a panel that touched on the state of sealing legislation today and how laws could be improved. We heard from Assemblyman Walter Mosley about the political landscape and challenges it presents; from Khalil Cumberbatch, Vice President of the Fortune Society on the enduring stigma of a criminal record and how records bar individuals from full participation years and decades after conviction; from Alvin Martinez, Education Specialist at The Doe Fund about how criminal records barriers affect his clients and keep them from moving ahead; and from Jill Harris, policy counsel to Kings County District Attorney Eric Gonzalez about how her office is creatively assisting individuals with past marijuana convictions to get them vacated and dismissed so they no longer act as barriers to advancement. All panelists expressed their frustration with laws currently in place, including C.P.L. §160.59, New York’s sealing law, now one year old.

October 2017 inaugurated New York’s first criminal records sealing legislation since the Drug Law Reform Act. C.P.L. §160.59, enacted as part of Raise the Age efforts, was intended to help people move past these stale convictions. But the law’s eligibility restrictions – including the requirement that a person not have more than two criminal convictions in their entire lifetime, none of which could be a violent felony – meant that millions of New Yorkers who could have benefitted from sealing were left in the cold. And while the law contemplated that individuals could proceed to seek sealing without the assistance of a lawyer, it proved extremely complex, time-consuming and difficult to maneuver. The sealing granted the successful applicant was also porous, meaning that sealed records continued to be available to certain government employers and other actors.

Despite initial predictions that hundreds of thousands of New Yorkers would be eligible to seal records under C.P.L. §160.59, to date fewer than 600 have done so. At CSS, we analyzed past Next Door Project client records and determined that approximately 70 – out of more than 3,000 –were eligible to seek sealing, and in addition to representing clients individually we set up apro bono project with a major law firm to help ensure that we could timely providerepresentation to as many eligible clients as wanted to proceed. Should – as we hope and expect–improvements be made to C.P.L. §160.59 that allow more New Yorkers to benefit fromsealing, we will be well positioned to assist.

Assembly Bill 3506-B rights decades of racially-disproportionate injustice on any number of fronts, while creating a structure that will allow the legalized marijuana industry to contribute to New York’s fiscal health. That a portion of profits from licensing and regulation will be rededicated to revitalizing communities hardest hit by overcriminalization and its collateral effects, including funds for nonprofit groups like ours that provide direct reentry legal assistance and representation to New Yorkers eligible to seal past records, is a wonderful addition to the bill, and will go a long way toward ensuring full participation for all New Yorkers.

And we are more than pleased that A. 3506-B specifically includes provisions for sealing past marijuana conviction records. Study after study shows that people of color are vastly more likely to be arrested and convicted of marijuana possession and forced to bear the ongoing stigma of a criminal record. We can no longer permit this injustice. Relief for those who in years and decades past unfairly experience barriers to moving ahead – disproportionately people of color – is welcome. The sealing mechanism the bill contemplates is indeed much simpler and fairer than the limited, complicated regime available under current law, and the sealing provided is stronger.

But we believe more can be done. The bill contemplates individual applications for sealing relief. We propose that, instead, the relief be automatic. CSS believes that with proper programming and tech assistance the New York State Office of Court Administration would be able not only to seal past records automatically, but to expunge them. This would ensure that all who should benefit from the changes in the law would do so, and that the benefit be meaningful.

As such, CSS specifically proposes that, rather than sealing records of convictions that would no longer be crimes under the new law, the bill require that they be automatically expunged – meaning that the records would be erased, not sealed. This is the just and fair way to address decades-worth of past injustices and ensure that these injustices not carry forward into the future. Expungement of past marijuana convictions, like expungement of stale conviction records, as our Campaign proposes, will help guarantee that criminal records discrimination – which is effectively a proxy for race discrimination – be stopped cold.

In our view, expunging past marijuana convictions is the right direction to go. But as A. 3506-B works its way through the legislature, amendments may be made to the bill’s existing sealing provision that take it in the wrong direction. Specifically, if the provision is amended to add the sorts of complexities we now see in C.P.L. §160.59 – a change we would clearly oppose – then directing community reinvestment funding to reentry organizations that are skilled in representing individuals tacking that law’s complexities will become crucial. A sealing remedy that requires legal intervention is no remedy at all if counsel are not funded to provide help statewide.

Thank you for this opportunity to engage in these discussions. CSS stands ready to assist on all fronts to help make the vision of full participation a reality for all New Yorkers.

© 2018 Community Service Society. All Rights Reserved. 633 Third Ave, 10th FL, New York, NY 10017
Community Service Society of New York is a registered 501(c)3.  EIN: 13-5562202