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| Cy Vance Jr. |
Far from an ending, I believe this success story has only just begun — both for the New Yorkers who are having their records sealed, and the thousands likely to benefit from this new class action approach to sealing in the future.
Why should prosecutors care about sealing old convictions? In the Manhattan District Attorney's Office, we believe that sealing aligns with our dual mission: to ensure a safer New York and a more equal justice system. Allowing past misdemeanor convictions to shadow otherwise law-abiding citizens for the rest of their lives serves neither purpose: It doesn't make us safer, and because marijuana enforcement overwhelmingly impacts New Yorkers of color, the life-altering collateral consequences of these particular convictions perpetuate grave inequalities both inside and outside of the justice system.
Declining to Prosecute Marijuana Offenses
This troubling reality necessitated that my office pursue a different path on marijuana. One year ago, I instituted a "decline to prosecute" policy for nearly all marijuana smoking and possession cases in Manhattan.[2] The result: a 99% drop in Manhattan marijuana prosecutions from June 2018 to June 2019.[3] We are committed to policies that achieve greater fairness and less incarceration, both today and in the future.
We did not arrive at our decision to end the routine prosecution of marijuana possession lightly. We developed our policy based upon a six-month national review of jurisdictions where marijuana is no longer criminally prosecuted. We published our findings from interviews with law enforcement officials and other experts in our report, "Marijuana, Fairness and Public Safety."[4] Our research found virtually no public safety rationale for the criminal prosecution of pot smoking nor any justification for the racial disparities underlying enforcement. And the potential for a marijuana conviction to ruin a person's application for a job, housing, college or green card is grossly disproportionate to the offense.
Dismissing Open Marijuana Cases
Mindful of these consequences, I moved last September to dismiss and seal virtually every open marijuana case we had — more than 3,000 dating back to 1978.[5] New Yorkers of color accounted for 79% of the defendants whose cases were dismissed.
This mass dismissal of open cases helped prevent unnecessary future interactions with the criminal justice system for thousands of New Yorkers, and empowered them to participate more fully in civic life. But those were just the open cases.
Civilly Sealing Old Marijuana Convictions
The genesis of our class action solution for New Yorkers with prior convictions for marijuana-related crimes — crimes that we no longer prosecute — originated from the state's Raise the Age Act, enacted in 2017, which provided people with an opportunity to seal decade-old convictions. The problem is that most New Yorkers eligible for sealing had no idea they could do it, and for those who did attempt it, the sealing statute proved overly complicated, requiring them to traverse a labyrinthine application process before multiple agencies. To date, only 1,279 people statewide out of an eligible 600,000 have had their records sealed under this law.
In order to make the sealing law work for more New Yorkers, we developed a legal strategy that, if we prevailed, would turn the sealing process on its head so that these sealings happen automatically.[6] We subsequently prevailed thanks to the efforts of the Legal Action Center, Community Service Society, The Legal Aid Society, New York County Defender Services, Neighborhood Defender Service and pro bono counsel Cleary Gottlieb Steen & Hamilton LLP. I was genuinely honored to collaborate with these outstanding public defenders to seal these records and remove unnecessary obstacles to employment, housing, education and other opportunities for hundreds of New Yorkers.
Together, we transformed New York's complicated sealing laws into a proactive success that no longer requires people who are eligible for sealing to navigate a complex application process. This is a victory for Manhattan and the scales of justice, but it is by no means the end of our work on marijuana-related issues.
The Road Ahead
I've publicly called for marijuana decriminalization since 2012, and for full legalization since last year, when our report proved that it could be done safely. In the last state legislative session, I joined with Albany County District Attorney David Soares to urge passage of the Marijuana Regulation and Taxation Act, and we're presently working on legislative advocacy for 2020.[7] I encourage other law enforcement leaders to join us in this movement. While sealing old cases can profoundly impact a New Yorker's life, the better way to eliminate all of the needless collateral consequences associated with the criminalization of marijuana is by legalizing it once and for all.
Until that day comes, we will continue building on the exciting precedent established by this class action victory. We'll assist prosecutors, defenders and courts in other jurisdictions who would like to take a similar approach. And in the coming months, we'll work to seal en masse other types of convictions, beyond marijuana, following the same legal strategy.
The consequences of any criminal conviction in a person's life should not last one more day than necessary. Class action sealings will move our justice system forward toward that goal.
Cy Vance Jr. is the district attorney of New York County.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Manhattan District Attorney's Office. August 12, 2019. "Through Groundbreaking Class Action, Hundreds of New Yorkers Have Old Marijuana Convictions Sealed. https://www.manhattanda.org/through-groundbreaking-class-action-hundreds-of-new-yorkers-have-old-marijuana-convictions-sealed/
[2] Manhattan District Attorney's Office. July 31, 2018. "Tomorrow: D.A. Vance Ends Prosecution of Marijuana Possession and Smoking Cases." https://www.manhattanda.org/tomorrow-d-a-vance-ends-prosecution-of-marijuana-possession-and-smoking-cases/
[3] Manhattan District Attorney's Office. August 1, 2019. "Marijuana Policy (PL 221.10 (1), PL 221.05) Report." https://www.manhattanda.org/wp-content/uploads/2019/08/2019.08.01-MJ-Stats.pdf
[4] Manhattan District Attorney's Office. May 2018. "Marijuana, Fairness and Public Safety: A Report on the Legalization of Recreational Marijuana in the United States." https://www.manhattanda.org/wp-content/uploads/2018/05/DANY-Report-on-the-Legalization-of-Recreational-Marijuana-Final.pdf
[5] Manhattan District Attorney's Office. September 12, 2018. "District Attorney Vance Dismisses 3,000 Marijuana Cases Dating Back to 1978." https://www.manhattanda.org/district-attorney-vance-dismisses-3000-marijuana-cases-dating-back-to-1978/
[6] Our class action strategy also provided New Yorkers an opportunity to opt out if they chose to do so.
[7] Vance, Jr., Cyrus and David Soares. June 14, 2019. "Legalize marijuana now, New York: Two district attorneys say the time has come to permit use of the substance." New York Daily News. http://www.nydailynews.com/opinion/ny-oped-legalize-marijuana-now-new-york-20190614-d7qkaekckbdcbhibuvyi6aqcvm-story.html