Second Chance Program May Provide Relief To Those Convicted of Drug Offenses In NY

There may soon be a relief for some people in New York who have been dealing the debilitating stigma that resulted from a conviction for a felony drug offense. State Assemblyman Jeffrion L. Aubry (D – Queens County) has sponsored bill number A0958, known as Second Change Program.

If implemented, the Second Chance Program will allow those who have been convicted of non-violent, not-sexual drug offenses to apply to have their records pertaining to their conviction sealed. Prerequisite to applying include waiting five years, achieving a GED or high school diploma, completing a drug treatment program, and performing a year of community service. Once the prerequisites are met, the defendant “may apply to the Second Chance Commission, to be comprised of individuals appointed by the Governor, the Senate Majority Leader, Speaker of the Assembly and two by the New York District Attorney’s Association.”

Once sealed, the records can only be “made available only to the person’s designated agent, designated law enforcement agencies, a court with responsibility for the criminal adjudication of the individual, an agency with responsibility for the issuance of firearms permits, and, with regard to an employment application, any governmental agency involved in the investigation or prosecution of criminal or civil statutes.”

Full text of the bill can be found at http://assembly.state.ny.us/leg/?bn=A04958

ANALYSIS OF THE BILL

The current version of the bill would definitely provide plenty of public policy benefits (see footnote for brief description of main benefits) that New York is missing by not having any criminal record clearing law. The bill is innovative in some positive ways. However, restricting relief to only those convicted of felony drug offenses greatly limits the bill’s ability to achieve its stated purpose. Also of concern are the many questions that are left unanswered by the plain language of the bill.

Among the innovative positives is the bill’s restorative justice approach to record clearing. Restorative justice is an alternative theory of justice that has been gaining increasing popularity. The theory calls for the building of partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. All record clearing laws fit restorative justice theories to some extent, but this bill goes farther in incorporating constructive responses.

While record clearing laws in most states focus narrowly on the needs of the court— which is paying court costs and fines, restitution needs of the victim, and the defendant demonstrating signs of rehabilitation by simply not getting convicted during a waiting period, the New York law takes broader approach. Most notably, the bill addresses the needs of society by having the defendant perform a year of community service prior to applying to have their record cleared. This restorative element will provide a direct benefit to society and, possibly, an indirect benefit to the defendant who may be personally enriched or learn skills while performing this service.

Also of note is the bills requirement that the defendant have earned a high school diploma or GED prior to applying. Not only does this requirement benefit defendants who have not received proper incentive to receive a basic education, it will better insure that the public policy goal of society getting a benefit from people who are otherwise marginalized is met.

There are several possible shortcoming of the bill.

First and foremost, relief is only available to those who have been convicted of felonies involving the sale, distribution or possession of controlled substances. Restricting relief to this narrow class of offenders greatly limits the potential benefits of the program. The bills stated purpose is to permit “individuals, who have successfully demonstrated their rehabilitation, to have the records of certain non-violent, non-sexual convictions sealed.” Limited the relief to only those convicted of felony drug offenses falls far short of the stated purposes and leaves tens of thousands of similarly situated people without relief.

A general shortcoming of the bill is that it leaves too much undefined. The lack of specifics almost always results in inconsistent implementation, judicial or administrative misinterpretation, or court challenges that can render the entire bill ineffective.

1. What is the standard used by the Second Chance Commission?
2. What is the remedy for appeal, if any?
3. Can someone reapply, if so, when?
4. What is a sex offense?
5. What is a violent offense?
6. When does the five-year waiting period begin?
7. If someone gets a subsequent offense, are previously sealed records made public or just unsealed for the purposes of adjudicating and sentencing in the subsequent court case?
8. When felonies and misdemeanors are counted for purposes of eligibility, are cases or counts to be counted?
9. Does this restore any rights that are lost as a result of felony conviction?
10. Does this seal records at all state agencies?
11. What happens if the person has a conviction during the waiting period for a previous offense?