Testimony: Clean Slate New York
Testimony by Stephen Dunn, Senior Staff Attorney
Before the Senate Standing Committee on Codes re: Senate Bill No. S1553A - An act that relates to the automatic expungement of certain convictions
My name is Stephen Dunn. I am a senior staff attorney at The Community Service Society of New York (CSS). Thank you very much for the opportunity to testify at this vitally important hearing. CSS is a member of the steering committee of Clean Slate New York, and we urge you to pass Senate Bill 1553A out of the Senate codes committee.
CSS uses a multifaceted approach to attack income inequality in New York. We have 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 to help create a fairer, stronger New York.
CSS comes to Clean Slate work from many years of advocating on behalf of clients facing steep hurdles due to conviction records. A conviction history can act as an insurmountable barrier to securing living-wage employment and housing, and to full participation in the life of our city and state. Due to discriminatory policing and prosecution practices, these barriers are disproportionally faced by people of color. CSS’s Legal Department has focused exclusively on working with and for persons with conviction histories for more than a decade. We litigate 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.
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, review and correct mistakes in their New York State rap sheets. In our confidential one-on-one review sessions provided at our Manhattan headquarters and at partner agencies across the city, we ensure that our clients obtain the firm knowledge of their record that is essential when applying for a job or occupational license, or trying to rent an apartment.
The reentry work that we and our colleagues are engaged in has never been as necessary as it is today because never before have conviction records been so easily accessible and widely distributed. The sale of conviction records has become big business, and this in turn has drastically changed what it means to live with a conviction record. The use and dissemination of conviction records has increased exponentially, and criminal background checks for employment and tenant screening purposes have become nearly universal. According to recent surveys, about 94% of employers and about 90% of landlords use background checks to evaluate prospective employees and tenants.[1]
The proliferation of background checks began in the immediate aftermath of the attacks of September 11th – a period when many of our civil liberties were sacrificed at the altar of “public safety.” Due in part to increased employer fear following the attacks, commercial background check vendors reported significant increases in business. For example, the monthly volume of criminal history check requests to one major firm increased from about 3,000 to almost 25,000 by February 2002.[2]
The rise in background checks has continued unabated, fueled by advances in information technology that have made it easier to obtain access to conviction records. Digitized court records, online state criminal repositories, and private databases that collect public conviction records have made accessing them easier than ever before. In the past, background screeners had to send “runners” to the courts to manually review conviction history information. Today, in many jurisdictions, everything is available instantly at the click of button.
Currently, there are approximately 2,000 background check companies doing business in the United States, with revenues exceeding $3.2 billion. Technological advancements have made it easier and cheaper for small and midsize companies to perform background checks. However, it is not just the number of companies increasing, but also the number of reports being generated. Three of the largest companies alone produced 56 million background checks in a recent year. Checkr, for example, provides background checks for companies in the gig economy such as Uber, and processes 1 million reports each month, or about 23 reports per minute.[4] These staggering statistics are only going to increase as technology continues to improve and these companies continue to obtain more resources.
Most background check companies now claim that they can offer ”nationwide reports” in a matter of minutes. Companies advertise “advanced technology models” that provide “rapid turnaround” times. For example, First Advantage boasts that its database adds 6,000 to 8,000 new records daily. Checkr, the company mentioned above, uses artificial intelligence and machine learning. Some companies now offer ongoing monitoring tools that notify the customer in real-time of any reportable changes to an employee's or tenant's conviction record.[5]
The burden of a conviction record has been significantly increased by these industry trends. “Passing a background check” is now an unavoidable prerequisite to obtaining a job or securing housing. The increased accessibility of conviction records has exacerbated the discrimination that individuals with convictions face. With each passing year, it has become more difficult for someone with a conviction record to obtain employment and successfully participate in the life of their own community. It is easy to imagine that someone with a 25-year- old conviction is more negatively impacted by that conviction today than they were when they first sentenced.
Thankfully, a movement has started to stem the tide of a system that prioritizes background check companies’ billions in profits over the health and well-being of our communities. Increasingly, people understand that we make our communities safer when we allow people who are returning home to access stable housing and employment. Clean Slate policies that automate conviction records expungement have overwhelming support across the country and the political spectrum. A recent poll shows that 70 percent of Americans support Clean Slate policies—including 66 percent of Republicans and 75 percent of Democrats.[6] Clean Slate legislation is sweeping the nation, with laws passed in Michigan, Pennsylvania, and Utah, and similar campaigns underway nationwide, including in Oregon, Delaware, Texas, Louisiana, California, North Carolina, New Jersey and Connecticut. It is imperative that New York not just join this critical movement but be a national leader by passing bold and inclusive automatic expungement legislation.
Here is a brief synopsis of Clean Slate laws that have been passed, and a few that are being considered across the country:
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This past October, Michigan’s Republican Legislature and Democratic Governor passed a package of bills that will automatically expunge misdemeanors and some felonies and give individuals the opportunity to apply for the expungement of other old convictions. According to Michigan’s Lieutenant Governor, “[t]his anti- poverty, pro-job opportunity Clean Slate legislation will reinvigorate the economic potential of hundreds of thousands of Michiganders whose records have hindered their availability to get a job or secure housing, and it will help us grow our workforce.”
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In June 2018, Pennsylvania passed the Clean Slate Act, which automatically seals many misdemeanor conviction records after a person stays conviction-free for a period of time and immediately seals all non-conviction records. This act passed with a Republican-controlled Legislature, a Democratic Governor, and 81 percent support among Pennsylvanians.
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Utah’s Clean Slate law, which took effect this May, established an automated process to expunge non-convictions and certain misdemeanor convictions from an individual’s record if they remain conviction-free for a period of time.
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In California, legislation was passed that will create a new automated process to prospectively clear certain records after the law takes effect in January 2021. However, advocates and legislators are already hard at work advancing additional measures. This past month a new bill was introduced in the Senate, S.B. 731, which would create a comprehensive process to automatically seal California conviction and arrest records once a person has fully completed their sentence and successfully gone two years without further contact with the justice system. Records of arrests that did not result in a conviction would also be automatically sealed.
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In Delaware, two different Clean Slate bills are up for consideration. SB111 automates the expungement process, and SB112 expands eligibility for mandatory expungement to include drug possession and additional felony convictions.
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In Connecticut, advocates have put forward a bill that would wipe away all misdemeanors from a person’s record seven years after their most recent conviction. Certain felonies would also be eligible for expungement after a longer waiting period.
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Oregon has put forth legislation that would remove barriers and improve the petition-based process and automate the expungement statute.
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In Texas, advocates are pursuing a multi-bill approach. Some bills would expand eligibility for expungement, while others would automate parts of the process.
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Both New Jersey and Louisiana have established task forces to implement automated expungement.
New York has an opportunity to emerge as a leader in this field. The Clean Slate NY act is admittedly bold legislation, but it is appropriately scaled to the scope of the problem we face in the Empire State. The reality of a conviction record, and the multiplicity and severity of civil consequences that flow from that record, have changed dramatically over the past couple of decades. These changes have been influenced by regressive, reactive policies that respond to fear-mongering by private background check companies concerned with profit: they have raked in billions while millions of New Yorkers are locked out of the economy and in a state of perpetual punishment. The Clean Slate NY act will enable the 2.3 million New Yorkers with conviction records to access the employment, housing, education and other opportunities they need to be full participants in the community and the state’s economy.
Notes
1. Ariel Nelson, Broken Records Redux: How Errors by Criminal Background Check Companies Continue to Harm Consumers Seeking Jobs and Housing, National Consumer Law Center, December 2019, https://www.nclc.org/issues/rpt-broken-records-redux.html
2. Market Snapshot: Background Screening Reports, Consumer Financial Protection Bureau, October 2019, https://www.consumerfinance.gov/data-research/research-reports/market-snapshot-background-screening-reports/
3 Id.
4 Ariel Nelson, Broken Records Redux.
5 Id.
6 John Halpin and Karle Agne, Voters Across Party Lines Support Clean Slate Legislation, Center for American Progress, June 2018, https://www.americanprogress.org/issues/criminal-justice/news/2018/06/20/451624/voters- across-party-lines-support-clean-slate-legislation/