Letter From The President Of The New York County Lawyers' Association

2009-12-01 01:00

To The Readers Of The Metropolitan Corporate Counsel:

Don't Underestimate Collateral Consequences

Recently, a public forum at NYCLA entitled "It's Not Just a Summons!" drew attention to the collateral consequences of non-criminal adjudications.Related issues were aired at another NYCLA forum, "Are Violation Pleas a Necessary Evil?"NYCLA has been urging reform in this area since it issued its report, "Collateral Consequences of Non-Criminal Adjudications," in 2006.

The basic problem was outlined in that report:

"The collateral consequences that result from criminal adjudications are common knowledge to those in the criminal justice system. From immigration to housing to professional licensing, the resulting consequences of a criminal adjudication can frequently be more severe than the sentence meted out in the actual criminal case. Historically, the collateral consequences of non-criminal adjudications, however, had not been so apparent.

"The collateral consequences of non-criminal adjudications have become a larger issue with results very similar to the consequences of criminal adjudications. Technology has now made these consequences dramatically apparent. Prior to the creation of a relatively new statewide search capability, these records were on file in courts, but there was no way to compile them electronically. Combined with the fact that a defendant's fingerprint record was sealed, this meant that employers, credit agencies or co-operative boards could not realistically and readily obtain information about these non-criminal dispositions.

"The New York State Office of Court Administration's statewide searchable database, however, has taken adjudications for all non-criminal petty offenses and made them available to everyone who pays the $52 fee.

"The unfortunate result of this instant access is that people are suffering actual housing and employment consequences, and credit companies regularly obtain these statewide searches when running background checks on individuals applying for credit. Real decisions are being made by those acquiring this previously unobtainable information, and those decisions are creating very harsh and very real side effects on people adjudicated of only petty, non-criminal offenses.

"Hundreds of private, commercial background-screening businesses access these data sources and create their own repositories of criminal history information. A recent report by SEARCH for the Department of Justice found that "several companies compile and manage criminal history databases with well in excess of 100 million criminal history records." SEARCH, The National Consortium for Justice Information and Statistics, Report of the National Task Force on the Commercial Sale of Criminal Justice Record Information (December 2005).

"In addition, collateral consequences can be critical impediments to the process of reentry from jail or prison, or from any involvement in the criminal justice system. Instead of deterring unlawful conduct, the web of collateral sanctions actually makes it more difficult to escape the cycle of crime - more difficult to find a job, maintain stable housing or obtain further education.'

Both forums focused on the need for awareness that pleading guilty to superficially minor violation like disorderly conduct in order to avoid the expense or uncertainty of a trial can have disproportionate, long-lasting consequences.It is particularly important that lawyers representing clients in connection with such violations explain these consequences before a plea bargain is concluded.

Everyone knows that mailing in a check for the fine to a speeding ticket will result in points on your driver's license, which will increase your insurance premiums for a period of years.Far fewer people would mail that check so quickly if the consequences were longer lasting - impairing your insurability for your lifetime - or more serious - license revocation.In order to maintain a reasonable balance between expeditious disposition of a high volume of traffic cases and imposing appropriate penalties for violations, the point system was developed.The crucial element of the point system is that points automatically expire after a reasonable period of time.

NYCLA has called for the legislature to implement a similar system with respect to non-criminal adjudications.There should be a way to remove automatically all records of a non-criminal adjudication from publicly available databases after the passage of some reasonable period of time.The removal should be automatic, without requiring the defendant to initiate the removal procedure.The reason for this is simple:many lay people do not realize the scope of the consequences of a non-criminal adjudication until it is too late - after they have been denied housing or a license.Even those who are aware of these consequences may lack the resources to hire a lawyer to seek to have their records sealed.Such a system could preserve access to records for legitimate law-enforcement purposes.

This is a problem that was created by the creation of extensive, publicly searchable databases.The solution should be incorporated into the architecture of these databases, so that records do not have an unlimited shelf life.

Sincerely,

Ann B. Lesk