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Nearly 600,000 New Yorkers Are Eligible to Have Their Records Sealed. Fewer Than 1,800 of Them Have Succeeded.

The results of record-sealing legislation enacted in 2017 shows the need for automatic expungement, advocates say.

New York City criminal courtGetty Images

Each time Larry cashes the paycheck he earns as a nurse’s assistant at a New York City hospital, he feels like he’s being forced to leave much-needed money on the table. The 42-year-old makes roughly $32,000 in base annual salary, but says he would earn an additional $50,000 if he could pass the criminal background check required to work as a certified emergency room nurse.

In 1994, when Larry was 17, he pleaded guilty to attempted felony criminal sale of a controlled substance, for steering an undercover NYPD officer to a dealer selling crack cocaine. He was sentenced to five years of probation. While still on probation, Larry was arrested and convicted of misdemeanor drug possession. He was sentenced to time served and has managed to stay out of trouble since. But the felony and misdemeanor convictions remain on Larry’s record and have stifled his ability to advance in healthcare or start a new career.

“I always wanted to be a police officer,” Larry, who asked to use a different name to avoid publicly sharing his arrest record, told The Appeal. “But being that I had so many things over my head, as far as the felony and stuff like that, I knew that was out of the question.”

With the help of the Legal Aid Society of New York City, Larry sealed his felony conviction in June under a new state law that allows people who have avoided crime for 10 years to seal up to two previous criminal convictions. But due to an error in the court’s order that sealed his record, Larry’s misdemeanor conviction remained visible on the background check as of September. That revelation has put his potential promotion on hold, he said.

“It actually made me want to give up,” said Larry, who is married and has five children. “But the thing is, I know that by giving up I’m losing hope, and I’m not gonna be able to provide for my family and my kids.”

New York’s state legislature attempted to ease life for Larry and nearly 600,000 like him when it passed a record-sealing measure under legislation enacted in 2017. New Yorkers with criminal records were eligible to have up to two nonviolent misdemeanors, or one nonsexual felony and one misdemeanor, sealed from public view in most background checks. But as of Aug. 31, just 1,758 people had their records sealed since it took effect two years ago. Advocates blame the low participation on the cumbersome record sealing process, as well as the state’s failure to adequately publicize the law and provide resources to assist people through the process.

Even those whose records are sealed may have inadvertent disclosures, as Larry did, or find that the sealing is insufficient because it does not completely lift the cloud of criminal conviction, unlike an expungement, which usually involves destroying all publicly available records of the offense.

That’s why most people’s criminal records should be expunged automatically after they have served their sentences, advocates say. When a record is expunged, it no longer appears in background searches and people can legally deny past criminal involvement when asked.

“I think it should be done easier,” Larry explained. “It should be a law that if a person stays out of trouble for a certain amount of time, it automatically can get sealed. Going through this process helps, but it takes so long.”

Advocates agree and are increasingly pushing for expungement rather than record sealing. “We have huge numbers of people in poverty who have arrests who are basically disenfranchised from working [and] participating in regular activities,” Emma Goodman, a staff lawyer at the Legal Aid Society who leads the organization’s Case Closed Project and who represents Larry, told The Appeal. “Until we actually fix that problem, and address the fact that we’ve been incarcerating more than a quarter of our population for decades, there’s going to continue to be a huge gap in what people are able to achieve.”

Nearly 1 in 3 American adults has a prior arrest or criminal conviction on their record, and many face barriers to gainful employment and upward mobility as a result. According to the Prison Policy Initiative, formerly incarcerated people had an unemployment rate of over 27 percent in 2008, compared with a jobless rate of 5.8 percent for the general public. In 2015, New York City “banned the box” on private employment applications, barring employers from asking about a job seeker’s criminal history—and the state has removed the question from public employment and university applications—part of a larger national movement in which 35 states and 150 cities and counties have done the same, according to the National Employment Law Project. But the laws don’t prevent employers from running a criminal background check before extending a job offer.

If records are sealed, most applicants can pass a standard background check, but sometimes clerical errors can cause some offenses to slip through the sealing process. Sealing criminal records is like putting your documents into a Ziploc bag, explained LaTorie Marshall, director of programs for Cage Free Repair, a national nonprofit that helps people expunge marijuana-related offenses. It may blur certain details from public view, but they are still visible upon closer inspection or by certain parties.  

“In some places, when people are older, they can’t live in a senior assisted living place because they have a record,” said Marshall. She co-founded National Expungement Week, a series of clinics staffed by pro bono attorneys who help people take advantage of local expungement and record-sealing opportunities. “They can’t even die in peace because the state won’t expunge their records, even though they’ve been out for 40-plus years. How is that fair?”

State lawmakers built on the 2017 legislation in 2019 by passing a marijuana decriminalization package that will allow thousands of New Yorkers to have their drug convictions automatically expunged by the summer of 2020. But most other offenses eligible for sealing require people to make a case for themselves to the court in which they were sentenced, said Judy Whiting, general counsel for the Community Service Society of New York, which provides help with the process.

“People have to bare their souls to get relief that I and many other people think should be given them as a matter of course,” Whiting told The Appeal. “We have an obligation to get people what they’re telling us they need, and they need expungement.”

In recent years, state legislatures have expanded record expungement laws in more than a dozen states and local jurisdictions, including California, Massachusetts, Indiana, Oregon, Oklahoma, and Utah. In September, the district attorney for Salt Lake County, Utah, announced plans to reduce the criminal convictions of 12,300 people—7,600 misdemeanor cases and 6,200 third-degree felony cases will be downgraded to a lesser class. As a result, many people will become immediately eligible, and others will become eligible within a few years, to have their records expunged. And a proposal in the Connecticut General Assembly known as the Clean Slate Act would allow for automatic expungement of misdemeanor offenses three years after completion of the sentence for the person’s most recent misdemeanor offense, and for some felony offenses five years after completing the sentence.

But the record-sealing measure in New York, where there is no expungement law, isn’t reaching enough people, according to Legal Aid, which is representing approximately 300 clients currently working through sealing-related issues. In June, lawmakers in the state Assembly and Senate introduced measures that would greatly expand eligibility for record sealing, Goodman said. But it’s too early to know exactly how many more might qualify for relief, she said.

Larry told The Appeal that if the state allowed him to expunge his record, he would revisit his dream of becoming a police officer. As of now, his sealed felony conviction would still show up on a federal criminal background check, which all police departments require recruits to undergo. Even though his record was the result of a police sting, he said he never grew to resent police officers.

“I learned to forgive because I want someone to forgive me, to give me a second chance,” he said. “I can’t hold that grudge for the rest of my life.”