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Automatic Sealing? Expungement? As They Legalize Marijuana, New York Lawmakers Negotiate Clearing Criminal Records


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Mayor de Blasio discusses marijuana policy (photo: Michael Appleton/Mayor's Office)


New York seems poised to enact the country’s first automatic record-clearing guidelines for past marijuana convictions. Doing so, advocates and officials say, could remove barriers for hundreds of thousands of New Yorkers whose convictions -- for behavior that may soon be legal -- complicate tasks ranging from obtaining child custody to job searching to renting an apartment.

Automatic record-clearing is part of a larger ongoing discussion on legalizing adult marijuana use in New York, something Governor Andrew Cuomo has made a 2019 priority after years of opposition that also has support in both Democratically-controlled houses of the state Legislature. “Legalize adult-used cannabis,” Cuomo said in his State of the State address in January. “Stop the disproportionate criminal impact on communities of color.”

Bronx Senator and Senate health committee chair Gustavo Rivera also emphasized on the Capitol Pressroom with Susan Arbetter earlier this month that “the primary concern for many of us is the restorative justice aspect of this.”

New Yorkers poised to benefit from record-clearing for past marijuana offenses are majority black and Hispanic. In New York City, these communities made up 85 percent of marijuana possession arrests in 2016. It’s still unclear, though, how many crimes will be eligible for automatic clearing. There are also different record-clearing processes within an automatic framework: to seal a record is to shield it from view, while to expunge it -- advocates’ preference -- removes it completely.

Melissa Moore, deputy New York director for the Drug Policy Alliance, said advocates with the statewide marijuana abolition campaign Start SMART took notes on California’s approach to marijuana legalization. There, people with certain marijuana-related convictions were invited to apply for their records to be cleared. The Drug Policy Alliance has hosted free legal clinics in the state to assist them. “It’s still onerous,” says Moore. “In New York, how do we do this in such a way that places the lowest burden possible on individuals who have already been wronged? Making it automatic.”

“I believe that the Governor's office shares the goal of Assemblymember Peoples-Stokes and I,” stated Senator Liz Krueger, “to create a mechanism for automatically clearing records for marijuana offenses that would no longer be crimes.” Krueger, a Manhattan Democrat, carries the Legislature’s Marijuana Regulation and Taxation Act along with Assemblymember Crystal Peoples-Stokes, a Buffalo Democrat who is also the majority leader of the Assembly.

As for scope, Cuomo’s budget proposal would automatically clear the low-level possession convictions that make up the majority of marijuana arrests -- 800,000 over the last 20 years according to his office -- by amending existing record-sealing procedures. By contrast, Democrats in the Legislature have in recent legislative sessions proposed clearing more records: all possession-related, and some sale-related, convictions.

“We recognize and see where the governor was trying to go and we think it just needs to be much more expansive,” says Kassandra Frederique, New York director of the Drug Policy Alliance. “If we are going to end the criminalization of marijuana in this state, then we have to end the criminalization of marijuana in this state, wholesale.”

"We have three goals,” Cuomo’s counsel Alphonso David told Gotham Gazette, defending Cuomo’s proposal. “The first goal is to make sure that we advance social justice. The second is to advance economic development, and the third is to protect public health and safety. Our proposal addresses all three goals."

Currently there is no expungement procedure in New York, and the governor’s office has indicated he prefers sealing. But advocates say expungement would remove ambiguity. “You would be able to say, ‘I have no criminal record,’ and that would be the end of the conversation,” says Legal Aid Society attorney Emma Goodman, an expungement expert who helped draft relevant bill language shared with Krueger’s office in January.

Advocates have proposed that court records, including criminal complaints and any written decisions, be marked as expunged, while ancillary records such as fingerprints and mugshots are physically destroyed. (Even expunged marijuana convictions can be grounds for deportation, notes Immigrant Defense Project Supervising Attorney Marie Mark, so the proposal includes additional protective measures for non-citizens.)

“Expungement means completely erasing these convictions and criminal records to give New Yorkers of color a fresh start,” said Samaria Phillips, manager of the We Rise to Legalize campaign, in a statement. Her group is attending the New York State Association of Black and Puerto Rican Legislators’ annual conference on Saturday in Albany to call for expungement.

Mayor Bill de Blasio also endorsed automatic expungement in a December 2018 task force report from his administration, with the caveat that district attorneys should have the ability to challenge on a case-by-case basis. “Expungement should occur as an automatic process…to minimize procedural burdens on those with past convictions,” the report states.

But in the interview, David emphasized the governor’s support for sealing. Because New York has strong sealing laws, he argued, the “impact of sealing is a functional equivalent of expungement, while immunizing the legislation from potential legal challenge.”

Senator Krueger’s chief of staff, Brad Usher, also confirmed that her office does not have a preference so long as the process is automatic.

“While sealing does essentially the same thing to the record, it does not bring the same level of clarity and peace of mind,” Goodman challenges. “Sealing is ambiguous and confusing for employers and people with convictions, whereas expungement is not.”

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by Emma Whitford, Gotham Gazette
@emma_a_whitford

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Max & Murphy Podcast: A Hearing on Sexual Harassment in Albany


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Ben Max, left, of Gotham Gazette, and Jarrett Murphy, right, of City Limits


February 13, 2019 - Max & Murphy Podcast: A Hearing on Sexual Harassment in Albany, with Rita Pasarell of the Sexual Harassment Working Group

rita pasarell wbai 150Rita Pasarell was a victim of sexual harassment as a legislative aide and has more recently been an advocate pushing the state to hold public hearings on sexual harassment and improve its laws to combat the scourge in the public and private sectors. After much advocacy, the state Legislature held its first hearing in decades on Wednesday February 13. Pasarell and her colleagues were among those to testify. She joined the show to discuss the hearing and related issues.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or wbai.org

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by Ben Max, Gotham Gazette
     

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Legislators Pursue Campaign Finance Reform for District Attorneys


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Manhattan DA Cy Vance (photo: @ManhattanDA)


District attorneys wield nearly unfettered discretion as to whether to prosecute potential defendants, but nothing in the law prevents lawyers for the accused from donating to a district attorney’s election campaign. Most New Yorkers became aware of this glaring blindspot in the state’s campaign finance law in 2017, following news that Manhattan District Attorney Cy Vance’s campaign had accepted thousands of dollars from an attorney for Harvey Weinstein, the disgraced Hollywood mogul who Vance’s office had declined to prosecute after he allegedly groped a woman and was caught on tape seemingly admitting to the act.

But the state Legislature could soon make sweeping changes to the rules governing district attorney campaign financing, as Assemblymember Dan Quart and Senator Liz Krueger, both Manhattan Democrats, are pursuing legislation to enact stringent restrictions on who can contribute, and how much, to candidates running for district attorney, of which there are 62, one for each county, across the state.

“Reforming of our campaign finance laws with respect to how district attorneys and candidates for district attorneys run is critical,” Quart said in a phone interview, “so that the public gets confidence that decisions made by district attorneys are on the merits and free of any conflicts.” Quart is rumored to be considering a run for Manhattan DA in 2021.

The proposed legislation would require that all district attorney candidates disclose to the state Board of Elections whether they have accepted campaign contributions from a law firm or an attorney at that law firm representing a criminal defendant in any New York state court. The bill would also mandate that the BOE create a statewide “legal dealings database” with the names of every licensed attorney, law firm or a firm executive who represents an individual or corporation in a criminal proceeding in any state court. The individuals and firms in the database would be restricted to donating only $320 to any district attorney candidate.

Spokespeople for Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins did not respond to requests for comment about support for district attorney campaign finance reform. Hazel Crampton-Hays, a spokesperson for Governor Andrew Cuomo, said in a statement, "The Governor has put forward a comprehensive ethics package in the Executive Budget and we will review any additional legislation if it passes both houses."

The proposal was first introduced by Quart in October 2017, shortly after Vance, a Democrat, requested an external, independent review of his campaign finances to rebut allegations that his office gave favorable treatment to Weinstein and other wealthy actual or potential defendants, including Ivanka Trump and Donald Trump Jr., whose lawyers gave to this campaign and who Vance’s office declined to prosecute for alleged criminal fraud in the sale of condos in the Trump SoHo hotel development.   

The review was conducted by the Center for the Advancement of Public Integrity at Columbia University, which issued seven recommendations for district attorney candidates to prevent real and perceived conflicts of interest or unconscious bias by prosecutors. They include blind fundraising (so candidates are not aware of donor identities), refusing or limiting contributions from donors with real or perceived conflicts, a strict firewall between a DA’s office and campaign, refusing contributions from one’s own office staff and their spouses, strong donor vetting processes, requiring certifications of eligibility to contribute, and published campaign contribution policies.  

Quart and Krueger’s bill would establish some of those firewalls. Quart’s legal dealings database is modelled on New York City’s own “doing business” database that logs companies and individuals who have contracts with the city and limits how much they can contribute to candidates in local elections. The $320 limit applies to candidates for borough president, whose districts are equivalent to the jurisdiction of a district attorney in the city. “I took those rules and that principle and applied it to district attorneys’ races,” Quart said.

The proposal would apply statewide. So, for instance, a law firm representing a defendant in Suffolk County wouldn’t be able to give more than $320 to a candidate running for Brooklyn District Attorney.

"It is vital that every New Yorker be able to trust our judicial system to reach conclusions based solely on the fact of cases, without even the perception that other influences might affect the results,” Senator Krueger said in a statement. “District Attorneys hold a singularly powerful position in our system, and therefore must be held to the highest standards to avoid potential conflicts of interest. This bill will help ensure that in New York, justice remains blind.”

The bill doesn’t cover all of CAPI’s recommendations, however. Berit Berger, executive director of CAPI, said the legislation is a “good start” but could go further. “The legislation does not require district attorneys to adopt blinding procedures that shield them from learning their donors’ identities,” she pointed out, in an email to Gotham Gazette. Blinding standards are currently used by candidates running for judicial seats in New York.

“As we explained in our report, this approach would most clearly address the conflicts of interest issue and safeguard against any conscious and unconscious bias in favor of campaign contributors,” Berger continued. “While the increased transparency from disclosing contributions from attorneys or firms representing criminal defendants is a great first step, I think more is needed to truly preserve the integrity of this fundraising process.”

It’s unclear if the bill will be supported or opposed by the District Attorneys Association of New York. Morgan Bitton, a DAASNY spokesperson, said the association is reviewing the proposal and that its legislative committee is set to meet later this month.

If the bill passes into law, Quart believes it could be in place for the 2021 elections. If he runs for Manhattan District Attorney that year, it would put him in contest with Vance, who will be up for reelection but has not declared whether he will run again or not. “My dissatisfaction with Cy Vance, the Manhattan District Attorney is well known,” Quart said, insisting that he had not made any decisions about his own political future yet. “I have said that whether this legislation passes or not, I would self-police in a way if I were a candidate in 2021.”

Whether Vance decides to seek reelection or not, the 2021 race could be a crowded one. This year, with no incumbent running, the race to be the next Queens District Attorney features more than half a dozen Democratic hopefuls, while races in the Bronx and on Staten Island with incumbents running again have sparse fields.

For his part, Vance, a former DAASNY president himself, supports Quart’s proposal. “As DA Vance said last year when he announced the most restrictive voluntary campaign finance limits of any elected prosecutor in New York, ‘legislative action is the surest way to achieve lasting, mandatory campaign finance reform,’” said a spokesperson for his campaign, who also noted Vance’s support for a public matching funds program for DA candidates, which is not part of the Quart-Krueger legislation, but could potentially be included in any broader public campaign finance system that Democrats in Albany hope to pass this year. Assemblymember Tom Abinanti, a Democrat, has reintroduced a bill this year that would establish such a public financing system for candidates for district attorney and supreme court justices. 

But the Vance spokesperson did say the Legislature should consider the feasibility of the legal dealings database proposal, which would be far more vast than New York City’s doing business portal. “As Columbia’s report notes with regard to the City database, ‘the class of individuals subject to Doing Business restrictions in New York City is relatively small, and is limited to senior company executives, major stakeholders, and registered lobbyists’ – as opposed to the vast and fluid population of lawyers who represent criminal defendants in New York State,” the spokesperson said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

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Note - This article has been updated to note that Assemblymember Tom Abinanti reintroduced a bill on public financing for district attorneys and supreme court judges.  



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