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Michael J. Fortunato Peter Nakonechni
December 11, 2023
On November 16, 2023, New York Governor Kathy Hochul signed the Clean Slate Act (the “Act”) into law. The Act, which becomes effective on November 16, 2024, seals the records of individuals with eligible misdemeanors after three years and those with certain felony convictions after eight years from the individual’s satisfaction of a sentence (i.e., after their release from incarceration or the imposition of a sentence if there was no sentence of incarceration), provided that the individual has not committed another crime in the intervening period.
I. Purpose
The Act’s purpose is to remove barriers to reentry into society by preventing employment discrimination over criminal records to allow rehabilitated individuals to secure jobs, housing, and education. This will help such individuals break free from a cycle of poverty and will reduce recidivism and improve lives and public safety by helping these individuals successfully transition back into their communities.
Approximately 2.1 million adult New Yorkers have a criminal conviction of some kind. Having a criminal record can prevent a person from fully participating in their communities and reaching their full earning potential after completing their sentence. Not only does this have a negative effect on the convicted individuals and their families, it has significant economic consequences that weaken state and local economies. For example, recent studies have shown that, without the Act, New York alone is missing out on nearly $12.6 billion in annual economic activity—which is the total cost of lost wages each year due to the reduced earnings of individuals with unsealed records.[1]
With its enactment of the Clean Slate Act, New York will become the 12th state to sign “clean slate” legislation, joining states such as Michigan, New Jersey, Oklahoma, Pennsylvania, South Dakota, and Utah. New York has also amended its Human Rights statute to prohibit discrimination based on a sealed conviction.
II. Eligible Convictions and Conditions for Sealing Records
The Act will automatically seal certain criminal records after a required waiting period. Individuals must meet certain conditions prior to the sealing of their eligible criminal records. For a misdemeanor conviction, at least three years must have passed from the individual’s release from incarceration or the imposition of a sentence if there was no sentence of incarceration. If that individual is subsequently convicted of a crime before a prior conviction is sealed, the calculation of time for such prior conviction will start on the same date as the time calculation starts for the subsequent conviction.
For a felony conviction, at least eight years must have passed from the date the individual was last released from incarceration or the imposition of a sentence if there was no sentence of incarceration. An individual’s detention for an alleged violation of parole or post-release supervision will not interfere with the time calculation for sealing the conviction unless the supervision is revoked and the individual is incarcerated as a result. As with a misdemeanor conviction, if an individual is subsequently convicted of a crime before a prior conviction is sealed, the calculation of time for such prior conviction will start on the same date as the time calculation starts for the subsequent conviction. In other words, the clock for sealing records restarts if parole or probation is revoked or if there is a new conviction.
Importantly, records will not be sealed for individuals convicted of sex offenses, murder, domestic terror, and other non-drug Class A felonies. Finally, no records will be sealed until parole or probation is complete and no pending criminal charges exist in New York State.
III. Sealing vs. Expungement
The Act does not erase criminal records. It allows only for the sealing of records after a period of time, not expungement—meaning the records will still exist, but they can be viewed only under certain circumstances.
IV. Public Safety and Access to Sealed Criminal Records
The Act contains exceptions that allow sealed convictions to be accessible where “relevant and necessary” and includes several components to protect public safety.
Criminal records will not be sealed to law enforcement agencies or the criminal justice system. For example, conviction information will remain available for law enforcement purposes; for the hiring of police officers; for the hiring of teachers at both public and private schools; for the hiring of individuals that may work with children, the elderly, or other vulnerable populations; for background checks for firearm purchases and/or licenses; and for applications for a commercial driver’s license. The Act also will not seal the records of individuals who are required to register as sex offenders or for anyone convicted of a crime where a life sentence may be imposed.
It is important to note that the Act does not lessen sentences or penalties for crimes, and does not affect orders of protection, restitution, reparations, or other forms of victim compensation.
Further, employers who already are permitted by law to perform fingerprint-based criminal history checks on job applicants will continue to receive those records and use them to determine whether individuals should be hired.
V. ATTENTION NEW YORK EMPLOYERS
While the Act gives convicted New Yorkers a second chance and the opportunity to rebuild their lives after paying their debts to society, employers must be sure to review their current background check practices and assess the extent to which the Act will affect their vetting and hiring practices, as the Act could limit the usefulness of those background checks. Positively, the Act could potentially expand the labor pool for many employers.
Employers should also note that the Act permits a private right of action by any individual who had a conviction sealed, allowing the individual to collect damages against a person who disclosed the sealed conviction where:
Overall, the Act has the potential to make New York’s legal system more fair, improve public safety, and grow the economy, while at the same time providing New Yorkers and their employers the opportunity to thrive together.
*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.
This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice. Always consult an attorney with specific legal issues.
[1] Ames Grawert / Noah Kim, New Data on Poverty and Criminal Records in New York State, Brennan Center for Justice, Published May 25, 2023 (Updated June 9, 2023), https://www.brennancenter.org/our-work/analysis-opinion/new-data-poverty-and-criminal-records-new-york-state.
