Rein in NYPD arrest-record abuse
Late last month, advocates filed a class-action lawsuit charging that the New York City Police Department maintains a massive database of arrest records, which it regularly discloses to outside parties, including prosecutors.
You might think this is no big deal. You’re wrong.
We have become so accustomed to thinking that law enforcement can access records of any and all encounters with the public that it might seem anachronistically quaint to insist that the police should be constrained in these activities.
But here in New York they are limited — by law — and those limits must be fiercely protected. In fact, if other jurisdictions are interested in mitigating the collateral harms that aggressive policing has on poor and minority communities, they should take note of what here in New York are called “sealing laws.”
First, some history. Forty years ago, the state Legislature recognized that records of mere arrests, not convictions, can produce a wide range of negative consequences, including denial of housing or jobs, and, perhaps most importantly, future law enforcement encounters.
So, in 1976, the state passed a law requiring police, courts, prosecutors and other agencies to seal records from arrests that end in dismissal, acquittal or an “adjournment in contemplation of dismissal.” In such cases, all records are supposed to be sealed, including fingerprints, photographs, prosecutorial files and court documents.
In 1980, the Legislature extended similar sealing requirements to arrests that terminate in noncriminal violation convictions, exempting court records. As one proponent of the bill explained: “This legislation is consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation.”
Limiting access to records generated from an accusation is even more urgent today for several reasons. First, New York City experienced a massive increase in low-level arrests starting in the mid-1990s under broken-windows policing, which stringently enforced minor infractions as the supposed key to maintaining urban order. Since 1995, the NYPD has made more than 4.5 million misdemeanor arrests.
As the misdemeanor arrest rate went up, an increasing proportion of those arrests terminated in either dismissal or a noncriminal conviction (frequently “disorderly conduct”). Over the past 10 years, more than two-thirds of annual misdemeanor cases result in dispositions that should by law be sealed in some form.
Second, in today’s era of Big Data, arrest records have a way of triggering a negative feedback loop for those living in highly policed neighborhoods, which tend to be minority neighborhoods.
The police are only allowed to access sealed records for investigative purposes with judicial oversight, but the lawsuit charges that the NYPD often uses sealed arrest photographs in lineups without obtaining a court order.
Even more troubling is the evidence that it regularly uses sealed arrests to make routine enforcement decisions. The police designate someone a recidivist based on arrests alone, as opposed to convictions, and then subject them to certain enforcement rules, like a must-arrest policy if they are stopped for mundane violations like putting feet up on a subway seat or having an open container of alcohol.
People who are not designated recidivists are eligible for summonses, as opposed to getting handcuffed and taken to Central Booking for 24 hours before seeing a judge.
Third, these records have the potential to translate into a criminal conviction, especially for misdemeanor arrests. In New York City, more than 99% of recent misdemeanor cases are resolved by plea, often at the very first court appearance.
Since court actors have very limited time (or inclination) to look into the facts or legal issues in misdemeanor cases, the prosecutor’s offer — heavily influenced by the defendant’s arrest record — often determines the ultimate outcome of an arrest. Using 30 years of New York City court data, my recent book shows that simply having an open case significantly increased the probability of a criminal conviction from a misdemeanor arrest.
If cops are sharing sealed arrest records with prosecutors, this violates the letter and spirit of the sealing law.
This practice also has significant implications for racial justice. Over the past 20 years, about 80% of the misdemeanor arrests have been of black and Hispanic people.
New York’s sealing law should not only be protected — it should be exported. In many states, all arrests are accessible to courts, prosecutors, police and the public.
The default should be switched: Absent some affirmative showing to a court why nonconviction arrests should be visible, the automatic response should be to seal the records. And here in New York, for necessary starters, the law must be enforced.