New York State Assembly Majority Leader Crystal Peoples-Stokes announced on Tuesday that she is planning to introduce a bill later this week that would not only legalize adult cannabis use, but would also provide the ability for those previously convicted of low-level cannabis-related offenses to have their criminal records expunged. Majority Leader Peoples-Stokes’ proposal goes a step further than legislation previously under consideration, which would provide only for the sealing of such records. Expungement is also the position favored by New York Senate Majority Leader Andrea Stewart-Cousins, who stated at a press conference last week that she prefers expungement over sealing.
When a criminal record is expunged, it is essentially erased in the eyes of the law, making it as though the individual had never been accused of the crime in the first instance. Expunged records should not generally appear in background checks, nor should there be a need to disclose the fact of the expunged arrest or conviction in connection with employment or educational applications. At present, New York law does not provide a mechanism for expungement of criminal records, rendering Majority Leader Peoples Stokes’ proposal an innovative solution to the collateral consequences attendant to past, low-level cannabis convictions.
New York law does already allow for sealing of criminal records in certain cases. When a criminal record is sealed, the record still exists, but access to it is tightly restricted. Generally speaking, the only people who can access sealed records are the defendant and law enforcement agencies that have obtained a court order. Like expunged arrests and convictions, sealed arrests and convictions should not appear in background checks. Unlike expunged convictions, however, sealed convictions may still carry legal consequences in certain circumstances. For example, sealed convictions may still be considered prior offenses for purposes of future arrests or convictions. It should also be noted that sealing may often be a lengthier process than expungement.
Observers have noted that introduction of an expungement provision will likely set up a disagreement between the legislature and the office of Governor Andrew Cuomo. The governor’s office previously argued that a provision allowing for expungement could only be implemented through an amendment to the state constitution, which could take several years. The governor’s office has taken the position that implementation of a sealing provision, however, could be accomplished through the traditional legislative process.