Many who objected to 'Clean Slate' bill cite domestic violence
Republicans says abusers shouldn't benefit from blanket sealing of records, but other voices disagree — even victims
Written by: Hannah Campbell
Written for The Times Union
Mariann didn’t expect that her decision to leave her abuser would result in a criminal record.
After she and her 5-year-old son left her abusive husband, Mariann was convicted of petit larceny for using a credit card that was in her husband’s name. She pleaded guilty to a misdemeanor, and completed probation after three years.
But years later, she lost a job offer after the conviction turned up during a background check. Mariann wrote the company a letter explaining the situation; the offer was still revoked.
“I feel like I’m underwater, being suffocated by a charge that’s holding me down,” said Mariann, who asked to be identified by her first name. “I don’t believe anyone should feel like that for an eternity.”
That’s the type of predicament New York’s “Clean Slate” Act is intended to alleviate. It’s a goal that Mariann supports, even though she knows the bill, if signed into law by Gov. Kathy Hochul, also would seal her ex-husband’s criminal record of abuse.
The measure, passed by the state Legislature last week, sets the process for the sealing of conviction records for an estimated 2.3 million people. If signed into law, it would make New York the 11th state to pass legislation that would automatically seal specified criminal records.
Misdemeanor records will be sealed three years after the offender completes their sentence or parole; most felonies would be sealed after eight years. The proposed law excludes “Class A” felonies such as murder and certain sex crimes. Clean slate laws differ by state: Texas, for example, bars the sealing of records pertaining to violent offenses.
Many Clean Slate supporters cite the economic benefits of the law, saying those affected will have better access to housing and jobs without the stigma of a criminal conviction. Large corporate supporters of the measure include JP Morgan Chase and National Grid.
New York City Bar Association President Susan J. Kohlmann said that while the measure is not as expansive as a version her organization supported, it represents a sound compromise after years in which the measure came close to passage only to fall short.
“The Clean Slate Act will achieve a measure of fairness for New Yorkers whose conviction records previously created insurmountable barriers to economic and social stability for themselves and their families,” Kohlmann said in a statement.
The act passed along fairly partisan lines: 83 to 64 in the Assembly, 38-25 in the Senate.
One issue cited by some of those who voted against it touch on Mariann’s story: Many crimes related to domestic violence, such as assault and strangulation, will be eligible for sealing. State Sen. Anthony Palumbo, R-Suffolk, said he voted against the bill because it does not provide specific exemptions for those offenses.
“The fact that the vast majority of domestic violence crimes, such as felony assault, strangulation, criminal contempt and false imprisonment will be automatically sealed is one of several reasons why I voted against Clean Slate,” Palumbo said in a statement. “Once again, the failure to allow for judicial discretion undermines the safety of crime victims and law-abiding citizens as a whole.”
Under the law, active orders of protection will not be affected or invalidated. It also would not affect a party seeking a new order of protection in either family or criminal court as part of a new set of charges.
Most orders of protection relating to a misdemeanor conviction last two years from sentencing, but in rare cases can last up to five years. For felony cases, those orders can last for five to eight years.
State Sen. George Borello, R-Chautauqua County, voted against the bill in part because it covered records of domestic violence crimes. He would prefer an alternative in which lower-level offenses are automatically sealed, while more serious offenders would have to petition to have their records reviewed and sealed. Borello said the bill passed earlier this month sends the message that “protecting a political agenda is more important than protecting the rights of the victims.”
If passed, the law would allow access to or the release of sealed records to courts and prosecutors during a new criminal case, and to law enforcement under the scope of an investigation. Records can also be released to any entity that is required under state or federal law to conduct a fingerprint-based background check, such as for work with children, the elderly or vulnerable adults.
State Sen. Zellnor Myrie, D-Brooklyn, who sponsored the bill, insisted that the way domestic violence crimes are investigated and prosecuted would not change under the law, and neither would court access to these records.
The bill is “about is giving people who’ve served their sentence, waiting either three or eight years beyond that, and continue to stay out of trouble the chance to hold down a job, obtain housing and education, and support themselves and their families,” Myrie said in a statement. “Victim and survivor advocates like the NYS Coalition Against Sexual Assault are strongly behind Clean Slate… because they know it will empower people to stabilize themselves and their communities.”
Maggie Fronk, the executive director of the Saratoga County-based domestic violence and sexual assault services resource Wellspring, said the passage of the Clean Slate Act is important for New Yorkers, including abusers as well as domestic violence survivors who may have been criminalized during the period of abuse or — like Mariann — while attempting to flee their abuser.
“Sometimes your abuser might, as part of the abuse, force you to do some criminal acts that you’re arrested and incarcerated for,” said Fronk, whose organization provides free and confidential services such as crisis intervention and counseling, emergency shelter and legal advocacy for victims. “When they get out from their incarceration, (Clean Slate) can help people to do that reintegration (into society) successfully. It can, in some way, benefit the criminalized domestic violence survivor.”
While the bill language does not include a specific outline for domestic violence-related crimes, Fronk said considerations such as orders of protection were acknowledged by lawmakers through the legislative process.
Fronk supports the bill that’s now headed to Hochul’s deck, but acknowledged the concern that some offenders will return to abusive behaviors regardless of whether or not their criminal records have been sealed.
“Domestic violence is a pattern of power and control, and abusers will exploit vulnerabilities,” Fronk said. “Even after one victim may leave that relationship, that person has a pattern of power and control that they are very much likely to find another person with a vulnerability, and perhaps the next relationship will also be abusive.”
Washington County District Attorney Tony Jordan, president of the state District Attorneys Association, said that when a domestic violence crime is reported to authorities, it is typically not the first instance of abuse. Police reports regularly reveal victims recounting numerous instances of past violence that went unreported.
“You might not know that this is a pattern because the woman who finally worked up the courage to report may also have worked up the courage to leave the situation,” Jordan said. “Very often, that guy moves on to somebody else, and their record would show as though they had no priors.”
Jordan agreed that some records should be sealed, but he believes most cases would benefit from judicial oversight to determine whether a case deserves to be rendered confidential.
Jordan said as the Clean Slate Act stands now, victims of domestic violence who may have been criminalized would be treated the same as their perpetrators under the law — an outcome that would further hurt survivors.
“When we take away their voice yet again, and we say what that person did to them will be wiped clean, they will have to continue to deal with and live with the aftermath,” Jordan said.
Kate Mogulescu, director of the Survivors Justice Project and a professor of clinical law at Brooklyn Law School, said claims that the Clean Slate Act will hurt domestic violence victims are “disingenuous” and “do not reflect what the law actually does.”
“Clean Slate does not make people who have experienced the harm of a criminal offense less safe,” Mogulescu said in a statement. “In fact, quite the opposite: Victims who have criminal records will benefit from record-sealing, as will so many people who deserve to be freed from a cycle of perpetual punishment.”
Mariann believes the Clean Slate Act should be enacted — to allow everyone a chance to succeed. Even abusers who have paid their debt and succeeded in changing.
“I need to have empathy for others,” she said.