On Sunday, March 31, Governor Andrew Cuomo and the New York State Senate and Assembly reached an agreement regarding multiple, significant pretrial criminal justice reforms as part of the state’s 2020 budget. These changes will begin in 2020. The reforms concern speedy trial, discovery, and bail and pretrial release.
The National Association of Criminal Defense Lawyers (NACDL), of which all members of our firm are members of, has long advocated for reform in these specific areas. As part of New Yorkers United for Justice, a coalition of many leading nonprofit organizations promoting for a more fair and humane criminal justice system in New York, NACDL and its state affiliate, the New York State Association of Criminal Defense Lawyers (NYSACDL), have been working in recent months to help bring about meaningful improvements to New York’s criminal justice system.
“From the perspective of a criminal defense lawyer who has practiced in New York for several decades, I can confidently assert that this package of pretrial reforms is the most significant legislative reform of New York’s criminal justice system in generations,” said NACDL Executive Director and Chair of the Board of New Yorkers United for Justice Norman L. Reimer. “While welcome and commendable, it must be that this is just the beginning of criminal justice reform in New York. There is so much work left to be done – from achieving a more robust exercise of executive clemency power, to parole and probation reform, expungement of marijuana offenses, disclosure of law enforcement misconduct records, and more. It is my every hope that the package of reforms agreed to in New York yesterday marks the first stage in a transformation of the State of New York from being a national laggard to a national leader when it comes to criminal justice reform.”
NACDL President Drew Findling said: “The New York reforms are another milestone in the effort to fix the nation’s broken criminal justice system. I am proud of the work that NACDL and NYSACDL have done to support the reform effort – and I congratulate the entire New York criminal defense community.”
With the new provisions of the law, there will be numerous changes to pre-trial criminal procedure. Cash bail will be eliminated for many misdemeanors and non-violent felonies, and police officers will be required to issue desk appearance tickets to most individuals charged with misdemeanors and Class E felonies. Thus, fewer individuals charged but not convicted of an offense will be incarcerated while presumed innocent simply because they can’t afford to post bail.
The changes will also have an important impact upon the discovery process. Previously, New York was considered among the worst states in terms of access to evidence and information by the accused pre- trial. The new rules require disclosure well before trial. Under the changes, individuals will also have the right to review information and evidence held by the prosecution no fewer than three days before the deadline to accept a plea offer, a significant improvement in the law.
Finally, with regard to a speedy trial, new changes provide for improved court oversight to move cases forward consistent with the timetables set forth in the speedy trial provisions.
To continue with the theme from my last post, the New York Times did a study on the benefits of expunging an individual’s criminal record. Although expungement is not available in New York, those convicted of crimes can have their record sealed from the vast majority of potential employers.
The Times found that the consequences of a conviction can last for decades after an individual has been sentenced and done their time. People with criminal records face major barriers to employment, housing and education.
Criminal justice reform, specifically in New York has focused on finding policy tools that can lower these barriers. The most controlling potential device is the expungement of criminal convictions from one’s criminal record. This seals the conviction from public view, removes them from databases, and ends most of their legal effects.
Up to 36 states have laws permitting expungement. Most only allow expungement depending on the number of convictions and the type of crime on commits. The individual usually has to wait years after completing their sentence and go through an elaborate process to have their records cleared. This is very similar to New York’s sealing process, as one has a 10-year waiting period with no criminal conduct to even have his application looked at for sealing.
In February, a bill was introduced in California, allowing automatic expungement of misdemeanors and minor felonies after completion of a sentence. In Utah, an automatic expungement bill is close to passing. These developments follow the first major automatic expungement law, which passed in Pennsylvania last summer.
Even with the landscape shifting toward automatic expungement, the main concern of many is that employers, landlords and others have a public safety interest in knowing the criminal records of those they deal with.
Little to no studies have been put forward to deal with the true effects of expungement. The Times’ study of expungement laws dealt specifically with the state of Michigan. Michigan has an expungement law that uses the traditional nonautomatic expungement approach.
All of the Times’ findings strongly support efforts to expand the accessibility of expungement.
People who got expungements tended to do very well. They found that within a year, their wages go up more than 20 percent. This gain was mostly driven by unemployed individuals finding work and minimally employed people finding sounder positions.
The recidivism rate for those with expungements were found to be at very low rates. The finding was considerably lower than those of Michigan’s general adult population. That may be because expungement decreases recidivism.
Another reason may be that expungement beneficiaries aren’t high risk to start off. Michigan requires a waiting period before expungement (five years after completion of sentence). Research indicated that people with records who go numerous years without another conviction are unlikely to re-offend.
However, barely anyone got expungements. Michigan only grants about 2,500 a year compared to the huge number of criminal convictions per year.
Few people actually met the legal requirements necessary. For those who did qualify, only 6.5 percent received expungements within five years of becoming eligible. Michigan judges have discretion to reject applications, but the bigger reason was over 90 percent of those eligible don’t apply.
Why? Most people don’t even know they can get an expungement, or don’t know how to do it. Many also cannot afford lawyers to advise them throughout the process. The procedure is long and complicated, requiring visits to police stations and courthouses. The fees (In Michigan usually total close to $100, minus transportation and time off work) are a barrier for people of lesser means. Many people with records often had painful interactions with the judicial system, making most want to avoid the situation altogether.
The low rate of applications for expungement is consistent with the difficulties that poor Americans face in dealing with the legal system. When the state makes it too hard or costly for citizens to exercise a right or opportunity, it’s no different from denying that right or opportunity. Most people won’t be able to help themselves without some guidance.
The Times’ research was clear: Obtaining an expungement should be made as simple as possible. States should follow the approach of Pennsylvania and the new California and Utah bills, and make expungement automatic once the legal requirements are met.
The results showed that expungement is a powerful tool for improving outcomes for people with records, without risk to public safety. Lawmakers are going to need to make it much simpler and convenient for people to use that tool and get a new start to life.
I recently ran across an article which I thought was quite interesting and hadn’t realized had been implemented. The Raise the Age Act by Governor Andrew Cuomo was implemented in 2018, but I wasn’t aware that one could apply for a pardon for their crimes during their youth. Here’s the gist of the pardon requirements.
Around 10,000 people will be impacted as New York starts to address a backlog of eligible individuals for pardon. Approximately 350 citizens will be eligible for pardons on an annual basis.
In October of 2019, the First-in-the-nation act will reach all individuals convicted of a misdemeanor or non-violent felony at 17 years old who have been crime-free for ten years.
Cuomo announced that he will use his pardon power to lessen the burden of a criminal conviction for people convicted of non-violent crimes when they were minors, and who have lived crime-free for at least 10 years. This action advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17-year-old children do not belong in the adult court system.
This step recognizes that people can move beyond the mistakes they make in their youth. If burdened with a conviction of any kind, these youth may find it extremely difficult for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. This move allows deserving individuals to move forward with their lives.
By pardoning New Yorkers who have reached the ten-year period crime-free, this step will help those who present little danger to the public. However, the pardon will be on a conditional basis, which means that if a person is reconvicted, their pardon will be withdrawn.
This will affect a significant number of lives. Of 16- and 17-year old’s who committed misdemeanors and non-violent felonies, approximately 10,000 have not been reconvicted after at least 10 years. This means that approximately 350 people convicted as 16- and 17-year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years.
In order for an individual to be eligible for this pardon, they must go through a careful screening process. All people who believe that they qualify for this pardon are invited to apply through the New York State website, ny.gov/services/apply-clemency. After being vetted, agency staff members will make a recommendation to the Governor to grant a pardon if:
- The person was 16 or 17 at the time they committed the crime for which they were convicted.
- At least 10 years have passed since the person was either convicted of the crime or released from a period of incarceration for that crime.
- The person has been conviction-free since.
- The person was convicted of a misdemeanor or a non-violent felony.
- The person was not convicted of a sex offense.
- The person is currently a New York State resident.
- The person has paid taxes on income.
- The person is a productive member their community, meaning that the individual is working, looking for work, in school or legitimately unable to work.
In addition to this general invitation to apply, the Governor will do targeted outreach to candidates for the pardon. Administrative staff will review and attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website.
This step will tremendously alleviate barriers for people with criminal convictions.
This conditional pardon is a direct advancement to the Raise the Age agenda of Governor Cuomo.