DOL, DOJ, State Senate

Assemblyman Jeffrion Aubry wrote a bill seven years ago to address leading causes of rap-sheet errors. Eric Schneiderman, an ex-senator who was prime sponsor of reform legislation, now commands a powerful position in law enforcement as state Attorney General. And State Sen. Patrick Gallivan is the rare Republican who is open to measures to address the rap-sheet problem.

If there’s a mistake on your criminal record, odds are it’s the result of a misstep made somewhere along the way in the criminal justice system. And while you did nothing to create the mistake, it’s completely on you to find out about it and get it fixed. That’s the way New York’s criminal justice system currently handles an epidemic of errors on records of arrest and prosecution—better known as rap sheets—that afflict an estimated 2 million residents. Those who don’t spot or correct the mistakes before they derail job, license or school applications, or who can’t find a lawyer or other expert to help, are plain out of luck.

But for years, criminal justice reformers have urged state legislators to adopt changes to the law that would dramatically reduce the number of errors that require individuals to shoulder these painstaking fixes. The proposed changes would remove long-dormant unresolved charges from records provided to potential employers and others. They’d also automatically redact information about warrants that show up in the system as open, even though later records clearly show they should have been vacated. In addition, the reforms would automatically seal cases terminated in individuals’ favor prior to 1991, as well as noncriminal convictions – like old violations for marijuana possession.

A six-part series

None of the proposed bills are especially heavy lifts, even for conservative lawmakers. But in a legislature regularly sidetracked by its own problems, even simple fixes often fail to achieve liftoff, and the history of the proposed rap-sheet error remedies is a case in point.

Death in the Senate

In 2010, a measure that would have sealed cases that have been inactive for five years or more but still are listed as “active” failed at the last minute—not because of major opposition, but because a timing snafu kept the proposal out of the budget.

That was as close as the reform legislation came to enactment. Since then, the bills have continued to float around the legislature without gaining traction: Some never made it out of committee, while others died in the state Senate, where the majority Republican conference is generally lukewarm to changes pegged at helping those with past convictions.

Advocates acknowledge that the current political environment doesn’t look terribly favorable for change. Republicans now hold an outright majority of the Senate, while the Democrat-dominated Assembly is still recovering from the recent arrest of Speaker Sheldon Silver and his replacement by a new speaker, Carl Heastie, who is still hiring staff and organizing committee assignments.

But there are still reasons for reformers to take heart. Much of the research has already been done in support of bills that were introduced in the past. And Eric Schneiderman, a former senator who was prime sponsor of reform legislation, now commands a powerful position in law enforcement as state Attorney General.

Even many conservative lawmakers acknowledge that, as a matter of efficiency and basic fairness, it makes no sense to burden individuals with countless trips to courthouse clerks, precincts and district attorneys’ offices to try to chase down and correct errors created by government.

“It’s just not fair for people to be penalized for other people’s mistakes,” says State Sen. Patrick Gallivan, a Republican who served as sheriff of Erie County in Western New York and now chairs the Senate corrections committee.

Many legislators take their cue on criminal justice changes from the powerful District Attorneys’ Association of the State of New York. But the Association, while quietly opposing some measures, has never taken a public position for or against the criminal-record reforms. Nor have other likely opponents. But these small fixes that advocates say would make a huge difference in the lives of thousands of New Yorkers have nonetheless languished.

Plenty of bills

Here is a brief history of recent attempts at reform:

—Suppressing old, incomplete records: (A2848-2015) This bill was first introduced in 2009 by then-Senator Schneiderman, a Democrat representing Manhattan and the Bronx. The bill targets what experts say is the single biggest problem faced by those tangled up in rap-sheet errors by keeping old, unresolved charges out of reports received by employers and others.

As the law currently stands, arrests that don’t result in prosecution, or which get dropped by the police even before they reach the district attorney, are supposed to be sealed. Unfortunately, that doesn’t always happen. Through bureaucratic slip-ups, arrests or charges often show up on rap sheets and criminal record histories as open and still-pending, even when they’ve long ago been dropped.

Many of these are the so-called “hanging arrests” that advocates say are the bane of those trying to fix rap-sheet errors. These are charges that are mistakenly left open after related arrests are dismissed or adjudicated in court. A study of 150,000 NYPD stop-and-frisk arrests conducted by Schneiderman in 2013 after he became attorney general found that officials couldn’t account for how more than 6,300 arrests were resolved. Most of these, Schneiderman found, were likely “hanging arrests.” All together, the report estimated that there are some 250,000 “hanging arrests” in New York City, imposing a major burden on DAs and courts as they try to track them down.

The task of determining what happened with the unresolved cases becomes even tougher the older they are, since the courts destroy original records after six years.

The proposed fix would have the state’s Division of Criminal Justice Services, which assembles and issues rap sheets, eliminate unresolved cases that are more than five years old. Law enforcement agencies would still have access to the information. But they would not be disclosed to employers, licensing agencies and others. (Read a complete analysis of the proposal here.)

The same elimination procedure would take place with criminal-history records held by the Office of Court Administration. Unlike rap sheets, these records are based on court records and publicly available for those paying the fees. They are a chief source for many commercial background check companies, which are now used by most major employers.

—Quashing old and incorrect warrants: (A3998-2015) First introduced in the Assembly in 2008 by Queens legislator Jeffrion Aubry, this legislation would resolve another major problem that pops up frequently on criminal records: bench warrants issued for failing to show up in court – even on cases that are long over. (Read a complete analysis of the proposal here.)

Bench warrants are supposed to be marked as vacated once the defendant shows up in court. But like “hanging arrests,” they sometimes slip between the cracks. Even after a defendant has appeared and resolved the charge, the warrant sometimes remains open on the books, taking on a life of its own.

One way this happens is when a case is switched from one court to another. For example, some cases that originate in criminal court are later moved to family court. If records are not properly updated, warrants get issued when defendants fail to appear in the original court, even though they’re properly showing up for hearings. These phantom warrants become a major stumbling block when people apply for civil-service jobs, or when they seek clearances for jobs such as a home-healthcare attendant or childcare aide.

Aubry, who chaired the Assembly’s corrections committee from 1997 to 2012, says he introduced the legislation after an overwhelming number of constituents came to his office seeking help on the issue. “There are a lot of things individuals in that circumstance have to go through in order to become employed, to get apartments,” says Aubry, “all of the things that keep them on the straight-and-narrow.”

—Sealing old dismissals and violations: (A5093-2015) Back in 1991, the legislature agreed that cases involving non-criminal violations, such as marijuana possession or disorderly conduct, as well as those resulting in dismissal or acquittal, should be automatically sealed, unless a judge ruled otherwise. The legislation had an immediate impact as the number of errors dropped dramatically—a testament to the power of state laws to reduce the harmful impact of rap-sheet mistakes.

But the legislation did not affect the thousands of cases prior to that period , all of which remain open to public view on official criminal records. Those with old cases still open on their records are forced to make a motion in the court where the case was docketed asking that their record be sealed. This clean-up method is not only cumbersome, it is often impossible to complete since records of the original cases are often either lost or destroyed, advocates say.

To fix the problem, Assemblyman Daniel O’Donnell, a Democrat from Manhattan who now chairs the corrections committee, introduced legislation in 2013 that would seal non-criminal marijuana violation convictions that are more than 20 years old. Although those caught with small amounts of marijuana are now no longer even charged in jurisdictions like Brooklyn, the bill failed with no public debate. The difficulty, O’Donnell believes, was due to quiet opposition from the District Attorney’s Association. The association, which represents the 62 district attorneys in the state, made no public comment against the proposed law, and Erie County District Attorney Frank Sedita, III, the current association chairman, did not return requests for comment.

“There was no sort of meaningful conversation about what that problem is,” says O’Donnell, who spent seven years as a criminal defense attorney before he won elected office. “The Association as a whole says to the Senate this is a bad idea, then it’s DOA when it gets to the Senate.” (Read a complete analysis of the proposal here.)

Seeking a GOP champion

Sebastian Solomon, a policy associate at the Legal Action Center, currently co-chairs a group called the Coalition of Re-entry Advocates that has been pressing these bills and others for the past five years. The biggest hurdle, Solomon said, has been finding someone on the Republican side of the aisle in the Senate who could carry the bills through. While there have been occasional rumblings that one or another Republican might break ranks and support the legislation, the advocates have yet to win anyone’s full commitment.

“Our big challenge is trying to find allies on the Republican side who are willing to push this,” Solomon says, though he points out that neither party has been overwhelmingly supportive of the efforts. “We feel like it would be an easier lift with the Democrats; it’s not like this was flying through the Assembly either.”

Dean Skelos, the Long Island Republican who leads the Senate didn’t return calls regarding the rap-sheet error problem. Neither did Jeff Klein, the Democrat representing a swath of the Bronx and Westchester who leads a breakaway faction of Democrats who shared power with the Republicans in the last session.

But Gallivan, the ex-sheriff who was elected to the Senate as a Republican in 2010, expresses interest. He says he has yet to study the bills, but offers concern about the huge number of errors on state criminal records after reading a report on the subject by the Legal Action Center that estimated some 2 million New Yorkers are affected. “It’s problematic and very surprising that it is something that has not been out in the public eye before,” he says. “If those numbers that are extrapolated out are true,” he adds, “I would think that the majority of legislators would want to do something to fix what looks like it is a problem.”