Why New York State Needs to Pass the Clean Slate Bill

 

Eric M. Deadwiley, Author:

CIVIL DEATH IN NEW YORK STATE

“How New York State Utilizes Criminal Conviction Records to Impede the Economic Growth of

Formerly Convicted People”

Edeadwiley27@yahoo.com

 

November 14, 2021

 

 

 

OPEN LETTER TO THE NEW YORK STATE LEGISLATURE

 

 

  Why New York State Needs to Pass the Clean Slate Bill

 

 

According to the Federal Government, there are over 80 million people with a criminal conviction on their public records. That is literally 1 in 4 Americans. I call this “public” notification of a person’s past–the “scarlet letter” of our day, which I also proclaim in my book (Civil Death in New York State) is the “civil death penalties” of the modern age. With the advancement of information technology, background checks have become more and more common; and with millions of Americans looking for work, employers are utilizing information technology to “sift out” applicants with any kind of criminal background, often in the initial application stage.  This ancient practice of “stigmatizing” and “ostracizing” people with a criminal history is truly “perpetual punishment” authorized by the State. Once a person has completed their sentence, whether that sentence was incarceration or otherwise, that person has “Paid their debt to society.” Black people still have the highest rates of unemployment nationally and it gets worse when you break the numbers down statewide. In many large urban areas across the country, the unemployment rate for blacks is anywhere from 30% to 50%.

 

Since Black people are “targeted,” “arrested,” “prosecuted,” “convicted” and “incarcerated” at much higher rates than other ethnic groups in this country. Blacks are facing “job discrimination” at higher rates than other groups as well. This reality has given rise to a “great depression” in the Black community that has laid waste to the Black family unit.  In response to advocacy groups pressing for meaningful legislative change in the hiring process of formerly convicted people, and all the empirical studies which prove that employment is the greatest deterrent to recidivism and “time” is the best predictor of future risk, the “Ban the Box” movement swept across the country.

 

The “Ban the box” movement was started by a group of formerly convicted people in Oakland, CA – called “All of Us or None.” Many experts studying the negative effects a criminal conviction could have on job opportunities have found that a person with a criminal past have a much better chance of getting hired when they are able to get to the “Interview” phase of the hiring process. The list of states and cities that have passed Ban the Box legislation steadily grew. Below are a few States and Cities that passed Ban the Box ordinances:

 

(1) Austin, TX; (2) Chicago, IL; (3) Connecticut; (4) Detroit, MI; (5) Durham, NC; (6) Hawaii; (7) Jacksonville, FL; (8) Massachusetts; (9) Memphis, TN; (10) Minnesota; (11) New Mexico; (12)Newark, NJ; (13) Philadelphia, PA (14) Providence, RI; (15) San Francisco, CA; (16) San Jose, CA; (17) Seattle, WA and (18) Oakland, CA. President Barack H. Obama (at the suggestion of myself and other advocates) put in place a “Federal Ban the Box ordinance.” Michael Bloomberg (NYC Mayor) implemented a ban the box ordinance by executive order for New York City hiring. Deval Patrick (Massachusetts Governor) signed into law one of the most progressive anti-discrimination laws in the country. the Massachusetts Criminal Offender Record Information Act (the “CORI Act”) among other things Bans the Box on public and Private employers, sets time limits on the access of applicant’s criminal records. The access of felonies is limited to those felonies committed within a ten-year period and misdemeanors within a five-year period. Information concerning convictions for murder, manslaughter, and “certain sexual offenses” (not all sexual offences) are not subject to the time limitations. CORI also requires that employers retain records of their background checks. Employers that access criminal records through CORI must obtain acknowledgment forms from applicants prior to viewing their criminal history on CORI and must retain those forms for a year following the date the CORI is requested.

 

The Empirical Studies Support the Clean Slate Movement

 

In a study conducted by Professor Devah Pager et al (Princeton University) titled: “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records.” They found that job applicants with convictions stood a much better chance of being hired when the applicant has an opportunity to build a “Rapport” with the employer in the interview phase of the hiring process. The National Employment Law Project (NELP) recently released a report titled: “65 million ‘Need Not Apply’: The Case for Reforming Criminal Background Checks for Employment.” This report makes a powerful and compelling argument that the population of people with criminal convictions is so enormous that we as a country would be committing fiscal suicide to continue to support laws and policies which keep 1/4th of the population of our country unemployed or underemployed.

 

In fact, many states are looking for ways to reduce their over-inflated corrections budgets by implementing common-sense policies which encourage employment of people with criminal past. NELP recently released another report titled: “Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records.” The report documents the progress of the Ban the Box movement in States, Cities and Counties across the country. According to the data, if New York State were to pass a Clean Slate law, it would become one in only a few states to pass the initiative and will make New York State the absolute “Leader” in anti-discrimination legislation in the country. Unfortunately, the Ban the Box Laws failed to remedy the discriminatory practices from Employers, because Ban the Box was flawed from its inception. Employers figured out that all they had to do to avoid Ban the Box requirements was to “sift” out Applicants once they receive their application. There is no requirement in Ban the Box for an Employer to contact an applicant once they receive their submitted application. Ban the Box failed because Employers with the assistance of Human Resource Companies found “massive” loopholes in the various adaptations of the laws around the Country.  

 

The National Association for the Advancement of Colored People (NAACP) also released a report titled: “Misplaced Priorities: Over Incarcerate, Under Educate.” this report offers a clear look into the budgetary expenditures states and municipalities allocate to incarcerating citizens as opposed to educating them.

 

The Community Service Society released a report titled: “Only one in Four young Black Men in New York City has a Job.” The CSSNY has taken a “Leadership” role as it pertains to “Cutting-edge” advocacy for the poor and disenfranchised in New York and around the country. The CSSNY remains as one of the “Top” advocacy organizations in New York.

 

A scientific study conducted by Professor Alfred Blumstein (Head of the Justice Department of Heinz College/Carnegie Mellon University) and Co-Authored by Kiminori Nakamura titled: “Redemption in an Era of Widespread Criminal Background Checks.” This report studied “Hazard rates” or “Risk” of formerly incarcerated individuals based on the amount of time that elapses after incarceration or conviction. Professor Blumstein and Mr. Nakamura found that the risk of recidivism decreases in 5 to 7 years, to almost equal the hazard/risk rate of non-offenders. They recommend the removal of the “Brand” of “Offender” after 5 to 7 years, as one of the best ways to promote desistance. In a New York Times Op Ed titled: “Paying a Price, Long After the Crime,” Professor Blumstein and Mr. Nakamura wrote:

 

It is well established that the risk of recidivism drops steadily with time, but there is still the question of how long is long enough. By looking at data for more than 88,000 people who had their first arrest in New York State in 1980 and tracking their subsequent criminal histories over the next 25 years, we estimate the “redemption time” — the time it takes for an individual’s likelihood of being arrested to be close to that of individuals with no criminal records — to be about 10 to 13 years. We also found that about 30 percent of the first-time offenders in 1980 were never arrested again, in New York or anywhere else.

 

“The only true scientific predictor of future risk is time.” Not all murder cases are the same, not all violent crimes are the same and certainly not all Sex Offenses are the same. In my opinion, the “original” version of the Clean Slate Bill was the better version because it took into account that “no one” should be perpetually punished for a crime for which they already paid their debt to society.  I have a friend who suffers from Mental Illness. One night while suffering a mental episode, he grabbed a woman’s buttocks. He was arrested and convicted for that Sex Offense. He later got help for his condition, went back to School and obtained a degree in Office Management and never reoffended again. Unfortunately, he “never” was able to get a job in the field for which he trained. Even after 23 years, that offense kept him from upward mobility which ultimately hurt his 5 children most.  Think about that for a moment. My friend paid his debt to society, did what every citizen and law enforcement person alike expects and wishes of all formerly convicted people, which is to never reoffend and strive to be a better person. Yet, after “23” years of perpetual punishment, there are those who still believe he should suffer “forever.”

 

In 2012 the Equal Employment Opportunities Commission (EEOC) updated it’s “Enforcement Guidance for the Consideration of Arrest and Conviction Records in Employment Decisions

Under Title VII of the Civil Rights Act of 1964” The EEOC concluded this about the use of criminal conviction records in hiring decisions:

 

Some states require employers to wait until late in the selection process to ask about convictions. The policy rationale is that an employer is more likely to objectively assess the relevance of an applicant’s conviction if it becomes known when the employer is already knowledgeable about the applicant’s qualifications and experience. As a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.

 

The EEOC has also clarified their policy position–that the exclusion by employers of people with a criminal record has a “disparate impact” on Blacks and Latinos.

 

Martin Luther King Jr. spent a large part of his civil rights struggle in defense of fair employment, equality and justice. Punishing a person by denying them a job, when that person has already paid their debt to society is “unjust.” Formerly incarcerated people are treated as “second class citizens,” which makes them “unequal.” Furthermore, to allow an employer to use a 10, 15 and oftentimes 20-year-old offense in this climate of high unemployment when college graduates with no criminal background are having a hard time finding employment; and as an “only” reason to deny a person an income is simply unfair. Dr. King said:  

 

In our society it is murder psychologically, to deprive a man of a job or an income.  You are in substance saying to that man that he has no right to exist.  You are in a real way depriving him of life, liberty and the pursuit of happiness, denying in his case the very creed of his society.

 

Please consider what Dr. King died doing. Dr. King was shot dead in Memphis, Tennessee, where he was fighting for the fair and equal treatment of sanitation workers.

 

Fiscal Implications of a statewide Clean Slate Law.

 

The benefits of a Clean Slate Law in New York State are astounding. First, the unemployment rate will drop dramatically almost overnight. Second, tax revenue will be greatly increased by the employment of “thousands” of able-bodied workers. Third, crime in general will decline because it has been established by advocates and social scientist alike that employment is the best answer to recidivism. Fourth, other states will follow in New York State’s footsteps and will find that their over inflated prison budgets will be reduced when more of their citizens are employed. Finally, fifth, but certainly not the least of these, “thousands” of New York State citizens will be able to pursue a better life without the social stigma which arises as an added consequence of a criminal conviction and be able to support their families which will bring thousands of children out of poverty

 

In Conclusion

I can go on citing study after study, from one social scientist after another who support a “time based” record sealing and expungement process. I assert that only time” is a predictor of risk and future criminal behavior. I further assert that “every offender” who has paid their debt to society should be given a time span to prove their rehabilitation and thus have their Criminal Records sealed from “public” view. Whether that time be 3 years for minor (non-violent) offenses, on up to 15 years as a “maximum requirement” for serious felonies (including) some Sex Offenses that do not require Sex Offense Registration, which are mostly Misdemeanors. Any Legislator who believes that 15 years is not enough time to assess a “free” person’s future risk as it pertains to criminal behavior is “not” basing their opinion on science, but on “personal bias and oftentimes their ‘personal’ discrimination.” How can the New York State Legislature expect the general public not to discriminate when the Legislature itself is discriminating? Therefore, no criminal offenses should be left out of Clean Slate qualification unless the crime is a particularly heinous crime in nature. Criminal Procedure Law Section 160.59 enacted in 2017 left too many people behind. Let’s not leave no one behind this time. Clean Slate sealing and expungement rights have broad from the Civil Rights community, the Business community and dozens of Not-for-Profit Organizations support the Clean Slate Bill. However, so that no free man or woman should suffer “perpetual punishment,” (and let’s not forget that Clean Slate is being passed to help “free” formerly incarcerated/convicted people, not incarcerated people) The Clean Slate Bill should be amended and Re-introduced to be totally based on “time” and not only on the criminal act. Thank you for taking the time to read my letter. Feel free to pass it along to your Colleagues for consideration.

 

Sincerely,

 

 

 

Eric M. Deadwiley

 

Ed

 

C:        FILE/VR