NEW YORK STARTS ENFORCEMENT OF LANDMARK CLEAN SLATE LAW EARLY
LEGAL SETTLEMENT PROVIDES STATE-WIDE MODEL FOR IMPLEMENTING NEW LAW BARRING DISCRIMINATION AGAINST FORMER CRIMINALS
By enacting the Clean Slate law into existence, New York lawmakers made science-fiction fact. Photo credit: screenshot The Dark Knight Rises.
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Months ahead of schedule, New York has started enforcing its landmark Clean Slate law—thanks to a settlement in a civil rights lawsuit approved by a federal judge in February.
The Clean Slate Act gives former criminal offenders in New York a real chance to begin new lives by automatically sealing the records of most—but not all—criminal convictions after a specified time. The bill was signed into law by Gov. Kathy Hochul at a large, loud bill signing ceremony attended by state democratic heavyweights in Brooklyn on Nov. 16, 2023.
"The best anti-crime tool we have is a job," Gov. Hochul said. "When people have steady work they're less likely to commit crimes, and less likely to be homeless."
Under the new law, most felonies—but not murder, rape and heavy-weight drug-dealing—are to be automatically "sealed" if the offender stays out of trouble for eight years after his or her release. Misdemeanors are "sealed" after three crime-free years. If a prison sentence was not imposed, the Clean Slate clock starts ticking the day of sentencing.
The new law does not blind police, prosecutors and gun-licensing officials—they can still "see" criminal history records. Other potential employers or licensing authorities that are required by law to conduct fingerprint-based background checks can also "see" the records. The law even includes an exception at the insistence of California's Digital Age Robber Barons: Uber and Lyft can also see otherwise "sealed" records.
But the law does bar the vast majority of private employers, landlords, employers, government agencies and licensing officials from discriminating against people with criminal records who have served their sentences and remain crime-free.
Clean Slate was the work of a coalition of business leaders and criminal justice reform advocates. In 2023, they finally convinced enough state legislators to vote for the bill.
That's because, nationwide, 77 million Americans of all races and genders—about one out of every four—have completed serving sentences for long-ago crimes but remain shackled to their pasts by criminal records that persist forever, according to the US Chamber of Commerce. They belong to a burgeoning underclass condemned to "extreme rates of unemployment" and poverty. They lose between $78 to $87 billion in collective wages each year.
"That is a moral outrage," the Chairman and Chief Executive of JP Morgan & Chase, Jamie Dimon declared in a 2021 New York Times Op-Ed.
"This group is ready to work and deserves a second chance," Dimon added. "Yet our criminal justice system continues to block them from doing so."
New York's Clean Slate law doesn't take legal effect until Nov. 17, 2024. Even then it gives officials an additional three years—until 2027—to actual seal the records that are required to be sealed under the law.
Given the millions of New Yorkers with criminal records, it's literally a mammoth task.
In practical effect, the new law requires courts, police departments and government agencies of all size and kind—state, county, city all the way down to small towns—to implement new policies and regulations to guide and enforce compliance.
It requires they search their records for criminal history information and either expunge or segregate it. It means obtaining the necessary budget funding to purchase the new computer technology required to accomplish it. It means establishing a process to seal criminal records going forward, and a confidential mechanism to resolve disputes over which records should be sealed.
Finally, it means amending any forms demanding criminal history information.
The exact number of Government forms demanding criminal history information is unknown but it is known to be vast. For example, in addition to thousands of applications for state and local government jobs, even public assistance recipients are required to list criminal history as part of mandatory work-experience programs.
Government officials, businesses and even private individuals like mom-and-pop landlords must scrupulously comply with the Clean Slate law because consideration or disclosure of criminal history information that is required to be sealed is a violation of the law. Unauthorized disclosure is not criminal, but it is a civil violation, or "tort."
The Clean Slate Act grants anyone affected by an illegal disclosure of their sealed record a new legal right to sue for violations. The law explicitly allows victims of unauthorized disclosure to recover damages.
While the law doesn't take effect until Nov. 18, New York has already begun implementing it.
The State Department of Environmental Conservation seems like an odd choice to be the first state agency to officially apply the Clean Slate law. The primary mission of the agency is to enforce the state's environmental laws and protect its 3-million acre Forest Preserve, not its criminal justice laws. Yet in its capacity as warden of the state's woods and waters, the state legislature gave it the authority to license outdoor guides.
Although the legislature did not direct the agency, known as DEC, to deny outdoor guide licenses to former felons, the DEC adopted that as its unwritten policy. DEC's guide license application form even asked applicants to disclose all arrests, not just convictions.
No longer. Under a legally binding settlement in a federal civil rights lawsuit, DEC can no longer demand applicants list all arrests and deny all former felons the right to work as outdoor guides. Instead, under the settlement, DEC can only require people who apply for guide licenses to disclose if they have any "unsealed" criminal records of convictions.
The settlement provides a model for all government agencies, employers and any other entity that demands criminal history information from people in New York, according to Assistant Attorney General Max Shterngel. Shterngel represented the DEC in court for Letitia James, the State Attorney General.
"It's going to be the model for all state agencies to follow implementing Clean Slate," Shterngel told The Free Lance.
The settlement was approved by upstate New York federal judge Glenn T. Suddaby on Feb. 20. Judge Suddaby is better known for striking down parts of New York's new highly-restrictive gun laws in 2023.
The lawsuit that led to the historic settlement against DEC was filed and litigated by JB Nicholas, publisher of The Free Lance.
Earlier in the lawsuit, Judge Suddaby approved a ruling by Albany-based Magistrate Christian F. Hummel that outdoor guiding is protected by the U.S. Constitution. The ruling was the first time a federal court found outdoor guiding was expressive activity protected by the First Amendment.
Basil Seggos, the DEC's Commissioner, approved the settlement Feb. 8.
Separately, Seggos announced his resignation from DEC, where he'd worked for eight years, on Feb. 21. Seggos's legacy now includes this social justice accomplishment.
Letitia James, the State Attorney General, supported enactment of Clean Slate legislation and the legal settlement that gives it early life.
"The Clean Slate Act will help ensure our justice system is fairer and more equitable," she stated in a news release when Gov. Hochul signed it into law. "The millions of New Yorkers who have paid their dues and are ready to rebuild their lives deserve a second chance."
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