Testimony: Automatic Expungement and Clean Slate NY
Avery Bizzell
Before the New York State Assembly
My name is Avery Bizzell. Thank you very much for inviting the Community Service Society of New York (CSS) to testify at this vitally important hearing. I am the community organizer at The Community Service Society of New York (CSS), working very directly on issues of sealing and expungement, as organizer for Clean Slate NY – a campaign we will introduce you to in a moment.
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. Because a criminal record can present an insurmountable barrier to securing living-wage employment and housing, and to full participation in the life of our city and state, CSS’s Legal Department has focused exclusively on working with and for persons with conviction histories for more than a decade. It almost goes without saying that due to discriminatory policing and prosecution practices, these burdens are disproportionally borne by people of color. CSS litigates on behalf of individuals and groups who have suffered actionable discrimination because of their records, and we engage in policy and legislative advocacy to make systemic change. Further, our Next Door Project helps more than 600 low-income New Yorkers each year to obtain, understand and fix mistakes in their official criminal record rap sheets.
I am here representing CSS, but – more important – I am also here as a member of Clean Slate NY, a statewide coalition of advocacy groups, community organizations, legal services providers and directly impacted individuals convened by CSS and the Legal Action Center. Clean Slate NY, formally launched just this morning, is advocating for automatic criminal records expungement legislation, and so this important hearing could not come at a better time.
Thank you for the work that you’ve already done on this issue by passing important records sealing legislation in 2017. CPL §160.59 was a good first step to secure some measure of relief for people burdened by stale convictions. However, we’ve now had two years to work with this law, and we can say definitively that more needs to be done. While many hoped that this law would have far reaching effects, fewer than two thousand sealing orders have been granted to date. Millions more New Yorkers with conviction histories have been left behind. The reasons that CPL §160.59 hasn’t been more impactful are relatively straightforward. First of all, the eligibility requirements are too stringent. Limiting relief to individuals who have no more than two convictions in their entire lifetime bars millions of people from getting needed relief. This arbitrary limit excludes the millions across our state who have three or more convictions, including many who experienced homelessness, addiction, or mental illness. It fails to account for the fact that decades of discriminatory over-policing targeted communities of color, and that those bearing the burden of conviction histories are also primarily communities of color. Two is not a magic number, and it’s one we need to move away from.
Secondly, the ten-year waiting period before a person can apply is far too long. In that time, a person’s life can be irrevocably altered by the burdens imposed by a criminal record. One study estimates that the unemployment rate for formerly incarcerated individuals is over 27%. Those who are able to find work are limited to positions and salaries well below their potential. Many people have no choice but to accept the reduced horizon of opportunity imposed by their conviction history.
Lastly, because CPL §160.59 is an application-based rather than automatic process, it really burdens both the applicant and the court system. While the law was intended to be used by applicants operating pro se, the many advocates in the room today can attest that unfortunately it doesn’t work as intended. It’s simply too hard to navigate without a lawyer. While New York City applicants are fortunate to have so many advocates willing and able to assist on these sealing motions, that’s not necessarily the case in other parts of the state where fewer resources are available. Furthermore, it’s not just advocates who are called to action. District attorneys, judges, and law clerks are all required for this process. Records need to be retrieved and DCJS needs to be notified. The process is laborious, time consuming, and leads to backlogs. As an example, our office submitted a CPL §160.59 sealing motion in June of 2018. While the motion was uncontested, and no hearing was held, we only received a favorable decision last week.
The Notice of Public Hearing for this event makes clear that the Assembly is committed to removing “barriers for individuals who come into contact with the criminal justice system in order to promote successful reentry and reduce recidivism.” The surest path to that goal is through broad automatic expungement of criminal records. We can say this confidently for two main reasons. One is that we have tried narrow, application-based record clearance with only limited success. The other reason is that records expungement is what directly impacted individuals tell us they need, week after week and year after year. At CSS’s Next Door Project, we help more than 600 New Yorkers each year to obtain, fix mistakes in and understand their official criminal record rap sheets. We help them apply for certificates of relief and, in the rare situation where they are eligible, apply for sealing under CPL §160.59. At each and every group intake for the Project, we have to lower expectations for people who’ve come to us thinking we can expunge their stale records and allow them to move on with their lives. We owe it to them to do more.
Clean Slate NY – our statewide campaign, announced today – is guided by people with criminal convictions and the communities that have been most heavily impacted by mass incarceration. Our anchor organizations, including VOCAL-NY, JustLeadership USA, New Yorkers United for Justice, The Legal Aid Society, The Bronx Defenders, the Center for Community Alternatives, and Next 100 Fellow Zaki Smith are convening with their constituents, clients, and community to help develop this expungement legislation. We are conducting listening sessions throughout the state to help inform our work on this going forward. We held one amazing session last week here in NYC. Tomorrow I’ll travel to Buffalo for a listening session convened by our anchor group VOCAL-NY; another session will take place in Albany in a few days.
What we know – and what our listening sessions are bringing home to us – is this: we need broad-based legislation automating records expungement. This legislation must remove the lifetime conviction barrier, reduce the waiting time, and increase the categories of offenses eligible for expungement. This will drastically increase the number of people eligible for relief while significantly decreasing the administrative and financial burden on the court system. Just as importantly, this is what individuals with conviction histories have day in and day out told us they need in order to participate in all aspects of their community and the state’s economy. We look forward to working with you in the coming months to make automatic expungement legislation a reality in the state of New York.