Confusion surrounds NYS law to 'expunge' low-level marijuana convictions
A recreational marijuana smoker on April 14, 2020 in the Bushwick section of the Brooklyn borough. Credit: Getty Images/Bruce Bennett
ALBANY — Under a 2019 law that began New York state’s “automatic expungement” of low-level marijuana possession convictions, the criminal records of as many as 35,000 people have been cleared, according to documents and interviews.
But almost all those records have been sealed, not destroyed, as many supporters of the law had expected at the time it was passed. Instead, the expungement law has destroyed just 13 criminal records statewide.
And that has led to confusion over whether expungement under the law means a conviction record is sealed or actually destroyed and what the potential consequences of each would be. Some advocates say sealing is sufficient, but others warn sealed records can still be accessed even though the documents can only be unsealed under limited circumstances.
The 2019 law that began decriminalization was a victory for the Democratic-led State Legislature and by then-Gov. Andrew M. Cuomo. Supporters said it was necessary so that low-level marijuana crimes didn't get in the way of New Yorkers trying to make a better life, to rent apartments, get hired, secure student loans or obtain a professional license.
A sealed record means that the rap sheet still exists, but the convictions can’t be accessed by prospective employers, landlords, bankers or student loan officers or for other everyday transactions. Someone with a sealed record can legally say that they haven’t been convicted of a crime.
A sealed record, however, can be unsealed and used when the person who was convicted applies for a pistol permit or a job as a police officer or peace officer, or by order of a judge based on his or her judgment.
Many supporters of the law had believed that “expungement” meant the criminal records would be destroyed. To destroy the records, a previously convicted person must petition the court. Destruction means that not even a judge could resurrect the record of convictions.
Some advocates are surprised that only 13 criminal records have so far been destroyed.
“It’s hard to believe,” said David C. Holland, a lawyer on the Legal Committee of the National Organization for Reform of Marijuana Laws. “It’s astonishing.”
Holland said some people are trying to put their low-level convictions of marijuana misdemeanors behind them and many want the record destroyed because of a lack of trust that it won’t be used against them, he said.
However, Melissa Moore, director of civil systems reform at the Drug Policy Alliance, a lobbying agent in the reform of drug laws, said that while there seems to be a "good deal of confusion, I think the broad understanding is that it should no longer have any bearing on their life, which is indeed the case. I think what is done so far would suffice on that level. But it still begs the question of whether we are operating on different parameters here.”
Sen. Jamaal Bailey (D-Bronx), who sponsored the 2021 bill, has said that while more work was needed, the law was a good step toward unburdening New Yorkers from those convictions and will be especially welcomed in communities of color whose residents were disproportionately arrested on the charges.
In the 2019 law, the two lowest-level possession charges were decriminalized to violations. The result was that 24,409 people who had no criminal record beyond those possession charges had their records cleared and sealed. That includes 623 people who were arrested in Nassau County and 1,212 who were arrested in Suffolk County, according to state statistics.
Under the companion 2023 law that decriminalized marijuana, two more low-level possession and sale charges were decriminalized, which is leading to the sealing of the criminal records of more than 11,000 people who had no criminal record beyond those two charges. In all, the 2021 law will seal more than 107,600 charges, including about 2,178 people arrested in Nassau County and 1,722 arrested in Suffolk County, although most will still have records of other convictions.
State officials and advocates point to several factors that contribute to the confusion over sealing versus expungement. The two state agencies that handle the cases use different definitions for “expungement,” with the state Unified Court System saying expungement equals sealing and the Division of Criminal Justice Service saying only destroyed records are expunged, according to officials in each agency.
While the common definition of expunge is to obliterate or destroy, the 2019 state law states the record “shall be marked as expunged or shall be destroyed.”
In addition, state elected officials have often used expungement and destruction of records interchangeably. Further, the additional process to destroy records can be time-consuming and difficult for a person trying to eliminate his or her record of crimes that are no longer crimes. Others may opt to avoid that paperwork because they feel adequately protected by the sealing of their record.
Potentially adding to the confusion, some private attorneys and state agencies caution people — especially those embroiled in immigration issues — that sealing a record might be wiser. They reason a sealed record could prove that their arrest, if found in a background search, was nullified.
The concern goes beyond New York State.
“There is lots and lots and lots of confusion in states and localities over both terminology — sealing versus expungement — and also over the impact of various laws and reforms,” said Douglas A. Berman, professor at the Moritz College of Law at The Ohio State University. He is also editor of the blog, “Marijuana Law, Policy & Reform.”
“The terminology issue often gets the confusion started,” he said. “Generally, persons with records seeking relief would like to have those records made least available to those looking for them — so destroying may be better than sealing.”
But Berman also notes that can create complications for a person who had their record destroyed when an prospective landlord or employer learns of an arrest and assumes the worst.
“This kind of uncertainty and confusion is all too common for marijuana reforms,” Berman said.
The ambiguity could also lead to difference in procedures by courts within a state that could treat people with the same convictions differently, said Peter Leasure, senior research associate at the Drug Enforcement and Policy Center at Ohio State.
That potential for confusion is clear to many in New York.
“The term ‘expunged’ has always been a source of confusion,” said Lucian Chalfen, director of public information of the state Unified Court System.
The 2019 law also states the convictions can’t be used against the subject of the convictions in any legal activity, such as applying for a job. Yet the measure also cites state criminal law that a record may be unsealed “where specifically required or permitted by statute or upon specific authorization of a superior court.”
ALBANY — Under a 2019 law that began New York state’s “automatic expungement” of low-level marijuana possession convictions, the criminal records of as many as 35,000 people have been cleared, according to documents and interviews.
But almost all those records have been sealed, not destroyed, as many supporters of the law had expected at the time it was passed. Instead, the expungement law has destroyed just 13 criminal records statewide.
And that has led to confusion over whether expungement under the law means a conviction record is sealed or actually destroyed and what the potential consequences of each would be. Some advocates say sealing is sufficient, but others warn sealed records can still be accessed even though the documents can only be unsealed under limited circumstances.
The 2019 law that began decriminalization was a victory for the Democratic-led State Legislature and by then-Gov. Andrew M. Cuomo. Supporters said it was necessary so that low-level marijuana crimes didn't get in the way of New Yorkers trying to make a better life, to rent apartments, get hired, secure student loans or obtain a professional license.
A sealed record means that the rap sheet still exists, but the convictions can’t be accessed by prospective employers, landlords, bankers or student loan officers or for other everyday transactions. Someone with a sealed record can legally say that they haven’t been convicted of a crime.
A sealed record, however, can be unsealed and used when the person who was convicted applies for a pistol permit or a job as a police officer or peace officer, or by order of a judge based on his or her judgment.
Many supporters of the law had believed that “expungement” meant the criminal records would be destroyed. To destroy the records, a previously convicted person must petition the court. Destruction means that not even a judge could resurrect the record of convictions.
Some advocates are surprised that only 13 criminal records have so far been destroyed.
“It’s hard to believe,” said David C. Holland, a lawyer on the Legal Committee of the National Organization for Reform of Marijuana Laws. “It’s astonishing.”
Holland said some people are trying to put their low-level convictions of marijuana misdemeanors behind them and many want the record destroyed because of a lack of trust that it won’t be used against them, he said.
However, Melissa Moore, director of civil systems reform at the Drug Policy Alliance, a lobbying agent in the reform of drug laws, said that while there seems to be a "good deal of confusion, I think the broad understanding is that it should no longer have any bearing on their life, which is indeed the case. I think what is done so far would suffice on that level. But it still begs the question of whether we are operating on different parameters here.”
Sen. Jamaal Bailey (D-Bronx), who sponsored the 2021 bill, has said that while more work was needed, the law was a good step toward unburdening New Yorkers from those convictions and will be especially welcomed in communities of color whose residents were disproportionately arrested on the charges.
In the 2019 law, the two lowest-level possession charges were decriminalized to violations. The result was that 24,409 people who had no criminal record beyond those possession charges had their records cleared and sealed. That includes 623 people who were arrested in Nassau County and 1,212 who were arrested in Suffolk County, according to state statistics.
Under the companion 2023 law that decriminalized marijuana, two more low-level possession and sale charges were decriminalized, which is leading to the sealing of the criminal records of more than 11,000 people who had no criminal record beyond those two charges. In all, the 2021 law will seal more than 107,600 charges, including about 2,178 people arrested in Nassau County and 1,722 arrested in Suffolk County, although most will still have records of other convictions.
State officials and advocates point to several factors that contribute to the confusion over sealing versus expungement. The two state agencies that handle the cases use different definitions for “expungement,” with the state Unified Court System saying expungement equals sealing and the Division of Criminal Justice Service saying only destroyed records are expunged, according to officials in each agency.
While the common definition of expunge is to obliterate or destroy, the 2019 state law states the record “shall be marked as expunged or shall be destroyed.”
In addition, state elected officials have often used expungement and destruction of records interchangeably. Further, the additional process to destroy records can be time-consuming and difficult for a person trying to eliminate his or her record of crimes that are no longer crimes. Others may opt to avoid that paperwork because they feel adequately protected by the sealing of their record.
Potentially adding to the confusion, some private attorneys and state agencies caution people — especially those embroiled in immigration issues — that sealing a record might be wiser. They reason a sealed record could prove that their arrest, if found in a background search, was nullified.
The concern goes beyond New York State.
“There is lots and lots and lots of confusion in states and localities over both terminology — sealing versus expungement — and also over the impact of various laws and reforms,” said Douglas A. Berman, professor at the Moritz College of Law at The Ohio State University. He is also editor of the blog, “Marijuana Law, Policy & Reform.”
“The terminology issue often gets the confusion started,” he said. “Generally, persons with records seeking relief would like to have those records made least available to those looking for them — so destroying may be better than sealing.”
But Berman also notes that can create complications for a person who had their record destroyed when an prospective landlord or employer learns of an arrest and assumes the worst.
“This kind of uncertainty and confusion is all too common for marijuana reforms,” Berman said.
The ambiguity could also lead to difference in procedures by courts within a state that could treat people with the same convictions differently, said Peter Leasure, senior research associate at the Drug Enforcement and Policy Center at Ohio State.
That potential for confusion is clear to many in New York.
“The term ‘expunged’ has always been a source of confusion,” said Lucian Chalfen, director of public information of the state Unified Court System.
The 2019 law also states the convictions can’t be used against the subject of the convictions in any legal activity, such as applying for a job. Yet the measure also cites state criminal law that a record may be unsealed “where specifically required or permitted by statute or upon specific authorization of a superior court.”
Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.
