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Our Clients Deserve More Opportunities Post-Conviction

Posted By Sullivan & Brill, LLP || 21-Mar-2016

The criminal law can be unforgiving. If you happen to find yourself convicted of a New York State of Federal crime – whether misdemeanor or felony – the conviction plants itself on your record forever – literally. In effect punished a second time by wearing that conviction like a scarlet letter only to rear its head license applications, property owner and job background checks. Although every criminal sentence has an inherent beginning and end, the effect of sustaining a criminal conviction lasts long after the actual sentence is over. Simply put, the effects of a criminal conviction are like a sentence that never ends.

The effects of a criminal conviction can be devastating. To those who apply for a job, this unclean record can be the difference between getting the offer or not. Needless to say, to those who are unable to work because of a conviction lack the practical ability to make a salary and provide support for themselves and their families. Instead of helping our society with their employment and things like consumer spending, tax liability, and general happiness, that comes with it, they are left unemployed, idle and disenfranchised from the working public.

But where is the fairness in that? Where is the logic in that? What about the person who, although has committed the crime, has done his or her sentence, has deeply learned for their mistake, has become determined to never commit another crime again and has done all they could to make amends for their sins? Shouldn’t there be a point – after a certain period - where they have completed their sentence, finished paying back their debt to our society, and given the freedom to start anew? When it comes to those convicted of New York State and federal crimes the answers to those questions are not are generally “no.”

The reality is that when it comes to New York and federal convictions, there is no legal mechanism to expunge one’s record. In other words, despite your better efforts, the record will be there forever. There are some attempts to rectify this situation, but they are far from perfect. For instance, New York Correction Law allows for the issuance of a Certificate of Relief from Civil Disabilities (CRCD). A CRCD is an official, state issued Certificate that may remove any bar from certain employment or license applications. In addition, it will reinstate the convicted felon’s right to vote – which is automatically lost upon conviction. In the very least, the issuance of a CRCD creates a presumption that the defendant has been rehabilitated.

Along the same lines, recently, EDNY Judge John Gleeson (now former EDNY Judge Gleeson) was faced with this exact dilemma when a former criminal defendant who had pled guilty before him, years ago and was seeking employment but could not find a job. Judge Gleeson did not expunge the record, so, he did what creative and compassionate judges ought to do more often: he created his own remedy that went as far as he could within the bounds of the law.

The defendant in this case was a 57-year-old woman who was convicted of fraud 13 years ago. She was sentenced to 15-mponths incarceration. However, for the last 13 years, she had been crime free and had great difficulty finding work. At the time she appealed to Judge Gleeson, she was running her own house-cleaning company with her two sons. In his decision, Judge Gleeson determined that she had been rehabilitated. He also wrote that as the sentencing judge, he had “no intention to sentence her to the unending hardship she has endured in the job market.” So, Judge Gleeson issued her what doesn’t actually exist in federal law: a certificate of rehabilitation. In his view, to the extent he could, he tried to convince her future employers that she had learned from her mistakes and that she was entirely employable despite her federal conviction.

Neither of these options – a CRCD or Judge Gleeson’s Certificate of Rehabilitation – are perfect. They do not expunge or permanently wipe aware the criminal record. In other words, despite a Certificate of Relief from Civil Disabilities or a Certificate of Rehabilitation, an employer can find the conviction and choose not to hire you because of it. However, they make progress toward to the ultimate goal that criminal sentencing should be fair, compassionate and practical.

I understand the flip side of these arguments. I have heard those who say certain crimes are a matter of safety for our communities like those who have been convicted of violent and sexual crimes. But even those who have committed these crimes, can reform and change. I have represented many defendants convicted of these types of crimes that were young and misdirected when they engaged in this conduct and have completely transformed and matured to law abiding citizens.

I have also heard that perhaps knowing that your criminal conviction will stay with you forever will deter you from committing the crime. Indeed, I would bet this occurs. But to those that are not deterred by this consequence, is it a fair result. I imagine that if every crime carried with it a 20-year prison sentence that might lead to some real deterrence as well, but that sentence wouldn’t fit the crime and it certainly could border on cruel and unusual punishment depending on what the underlying crime was.

There are not easy answers. For for the most part, there needs to be a middle ground: some time-period where a criminal conviction is part of one’s record, but after that, the defendant’s record is wiped clean. In a nutshell, if a defendant shows clear rehabilitation through their actions and sincere desire to turn their life around, and if a sufficient period of time as elapsed where they have served their sentence – whether it’s prison or something else – then they deserve a 2nd chance. Fairness demands it. Our criminal justice system should demand it too.