Testimony of

Kingsley Rowe, LMSW Forensic Social Worker, Reentry Unit New York County Defender Services

Before the

New York State Senate Standing Committee on Codes

Public Hearing – Senate Bill No. S1553A – An Act that relates to the automatic expungement of certain convictions

May 6, 2020

My name is Kingsley Rowe. I am a forensic social worker in the Reentry Unit at New York County Defender Services (NYCDS). NYCDS is a public defender office that represents people in thousands of cases in Manhattan criminal courts every year.

I have been helping people to reenter their communities after incarceration since 2006. In my current role as a forensic social worker at NYCDS, I support our criminal defense clients leaving Rikers Island and other city jails. I help them find stable housing, get connected to public services that they need, finish their high school degrees or pursue college or vocational training, and find employment. I am grateful to Chair Bailey and the Senate Codes Committee for holding this hearing and allowing me to testify today about the importance of giving people with criminal convictions a meaningful chance to restart their lives once they have served their time.

Personal Experience Navigating Life with a Criminal Conviction

In addition to my professional experience helping formerly incarcerated navigate life with a record, I also have personal experience battling the incredible barriers posed by a criminal conviction.

In March 1999, I was released from prison after serving 10 years for a conviction in Pennsylvania. I was 19 when I entered prison and I was 29 when I was released. I was devastated by the shock of my conviction and sentence, but while I was incarcerated, I became determined to live up to my full potential and repair the damage that resulted from my actions. While serving my sentence, I completed an Associate’s degree at Saint Francis College (now University) as part of a program that offered Pell grants to inmates for prisoners pursuing college degrees. When I was released from prison in 1999, I enrolled in New York University. There, I received a Bachelor’s degree in Management Information Systems in 2002 and a Master’s degree in Social Work in 2006. Since graduating, I have spent the last fifteen years building a successful career as a social worker, largely focusing on helping formerly incarcerated individuals get back on their feet. In 2019, I was hired to launch NYCDS’s Reentry Unit, a new initiative to support NYCDS clients as they reentered their lives upon release from Rikers Island and other city jail facilities.

To be clear, I consider myself incredibly fortunate. I experienced several feats of luck and privilege that most of my formerly incarcerated peers cannot count on. First, I was able to take advantage of the Pell grant for inmates, which allowed me to obtain my Associates degree. This program was discontinued while I was in the middle of my studies1, but luckily, Saint Francis College allowed me to complete my degree. Second, I had a supportive family and stable house to come home to after I was released. My family was able to shelter, feed, clothe, and emotionally support me until I was able to earn a living wage on my own. This is sadly not the case for most formerly incarcerated people, including many of the NYCDS clients that I work with.

And yet, despite these crucial advantages and my unwavering resolve, I still suffered a number of devastating setbacks due to my criminal record. For example, in 2009, I lost my beloved job at a hospital where I had worked and thrived as a child therapist for two years. One day I was informed that the hospital would be running background checks on all its employees as part of a city audit. When the results came back, the Office of Mental Health and Hygiene contacted me. They told me that if I did not resign, they would report my conviction to hospital management, which would in all likelihood result in my termination. I chose to resign to spare myself the shame and embarrassment of confronting my colleagues and supervisors.

I ended up finding other work as a social worker, but in 2017, my criminal record returned to haunt me. I had been offered what can only be described as my “dream job”: a behavior intervention specialist at an elementary charter school in Bed-Stuy, Brooklyn. Shortly after accepting the conditional job offer, the results of my background check came back, revealing my criminal conviction from 1999. The New York State Office of School Personnel Review and Accountability (OPSRA) overruled the charter school’s job offer, and issued an order “order of intent to deny clearance for employment.” In an effort to appeal the decision and persuade the OPSRA to grant me clearance, I assembled a robust package containing dozens of letters and affidavits from coworkers, friends, religious leaders, college professors, my therapist, and even the charter school’s own founder and members of its Board of Trustees. Notably, this package also contained a Certificate of Relief from Disabilities, which was meant to remove any automatic bar to

employment or licensing. Nevertheless, OPSRA was unmoved. They denied my appeal, and my application to work at the charter school was rejected.

I was devasted. It felt like I would never emerge from the cloud of a criminal record. In the nearly three decades since sustaining that criminal conviction, I had led an exemplary life and done everything I could to reform myself. Yet I continued to face rejection and humiliation on account of my record. Even today, despite having landed another dream job at NYCDS, I still sometimes feel like this criminal conviction is a landmine, which at some unknown time and unknown place will explode without warning and once again, thwart my progress.

Reentry Work with NYCDS Clients

My personal experience is echoed every day in the lives of nearly every single client I encounter in my job. An estimated 2.3 million New Yorkers have criminal conviction. NYCDS represents thousands of these individuals every year. In 2019, for example, our clients’ criminal cases resulted in 605 felony convictions and 1,941 misdemeanor convictions. In my project, I work with hundreds of NYCDS clients who are discharged from serving sentences in NYC Department of Corrections facilities.

I offer a panoply of services for these individuals, starting with an initial counseling and intake session, where I conduct biopsychosocial interview to assess the person’s physical, medical, and therapeutic needs. Based on the results of that assessment, I assist the person in securing stable housing, signing up for Medicaid and other public benefits, coordinating placement in mental health and substance use programs, continuing their education and skills training, and applying for jobs and professional licenses. Last year, NYCDS did a statistical analysis of my project and found that clients who received my services had a 59% reduced risk of recidivism compared to people returning home who did not.

By the time I get involved with a client’s life, in most cases, they have already “served their time.” They are being released from custody precisely because they have completed the terms of the punishment that the court imposed. And yet, much of my job as a reentry social worker is explaining to NYCDS clients exiting Riker’s Island and other city jail facilities how their true sentence is just beginning. The reality is that the civil consequences of a criminal conviction are almost as profound and incapacitating as being incarcerated. A criminal conviction poses barriers to employment, housing, education, vocational training, professional licensing, and depending on the charge of conviction, referrals to mental health and substance abuse programs.

Failure of Existing Legal Mechanisms to Provide Meaningful Relief for People with Criminal Convictions

In my experience, I have found other avenues of relief fundamentally insufficient to address the barriers to employment, housing and education that convictions pose. Over the years, New York state has enacted various laws to mitigate the harm imposed by a criminal conviction. However, these measures, notably the Certificates of Relief from Disabilities and Good Conduct, the Fair Chance Act, and the 2017 sealing law, fail to provide meaningful relief.

For example, the Corrections Law enables sentencing courts and the Department of Corrections and Community Supervision to grant “Certificates of Relief from Disabilities” and “Certificates of Good Conduct” for individuals who have certain misdemeanor and felony convictions that pose automatic bars to employment or licensing. In practice, these certificates are hard to obtain and fail to offer any measurable protection from the stigma and discrimination individuals with criminal records face in job applications. In order to apply, individuals must first determine their eligibility and identify the appropriate adjudicator, which depends on the number of convictions the person has sustained, the jurisdiction of the criminal conviction for which relief is sought, the type of sentence imposed for that conviction, and the time elapsed since - a complex matrix that deters most eligible candidates at the outset. See Corr. L. 701-703. Once candidates have properly identified the correct application process, they then must establish their rehabilitation through supporting evidence, like letters, affidavits, school records, etc., and properly file the application. Corr. L. 702(2); 703(2); 703-b(1); 703-b(2). And yet, even when granted, neither of these certificates offers a guarantee that the underlying conviction(s) won’t pose barriers to employment and licensing. Rather, these certificates merely lift the automatic statutory bars to most jobs and licenses, and require employers to consider evidence of rehabilitation and good conduct in their (ultimately discretionary) decision-making. Corr. L. 702(3); 703-a(3); 753(2).

In my personal experience applying for employment with a Certificate of Relief from Disabilities, and in my professional experience helping others apply for employment with both Certificates, neither of these measures makes a meaningful difference in the outcome of the job or licensing application. Typically, employers and licensing boards disregard these letters without considering the individual’s potential, competence, or rehabilitation, as is technically required. Corr. L. 753(2).

Sadly, our clients suffer this treatment in job applications despite the protections against discrimination that the Fair Chance Act, a law passed by New York City in 2015 and amended in 2021, promised to provide. While employers are no longer permitted to ask about criminal history up front in a job application, in my experience employers will rescind a conditional job offer when they learn of a person’s criminal history. This inevitably deals a devastating blow to the applicant’s morale, who by that point had made it so far in the application process that they almost believed their fortunes were turning.

The New York State Legislature made some effort to address this widespread marginalization of those with criminal records in 2017, with the enactment of C.P.L. 160.59, which allows New York State courts the discretion to seal certain felony and misdemeanor convictions. Unfortunately, hardly anyone in New York has received any relief under this law. As of February 2021, only 2,498 New Yorkers have successfully had their convictions sealed.2 The eligibility criteria are far too narrow to provide meaningful relief to most of the individuals I work with, and the application process is onerous and difficult to navigate.

Knowing that the only legal mechanisms available to blunt the impact of a criminal conviction are doomed to fail, many people I work with resort to lying on job, school, and housing applications. It is the only way they feel they can secure a fair chance to succeed, but they live their lives in fear that they could be caught and lose their job, their home, or their access to education if the truth comes out.

Broken Spirits and the Cycle of Recidivism

I offer social work support for my clients’ community reintegration, but the most important service I provide to my clients, without a doubt, is my optimism and encouragement. My clients leave jail broken. While they are typically elated immediately upon release, that fleeting optimism quickly fades as the reality of their circumstances sets in. Their incarceration has usually shattered any semblance of stability that supported their lives prior to their arrest, and their new criminal conviction assures that they are re-entering a society even more hostile to them than it was before.

I help these people manage hope. Nearly all of the clients I work with come from traumatic backgrounds, and most were already victims of multiple systems of oppression even before they encountered the criminal legal system. Hope is key to their survival, but it is hard to reconcile with our system of perpetual punishment for people with criminal records. I do the best I can to keep my clients positive and hopeful, but I can only do so much to insulate them from the barriers and outright hostility that confronts them at every corner.

I have known far too many peoples who cannot sustain this hope in the face of repeated rejection, denials, and humiliation on account of their criminal convictions. They eventually wind up broken and demoralized, and who can blame them? Without opportunity or support, these individuals are forced into the same circumstances that originally led to their criminal legal system involvement.

I wish I could tell my clients that there was a light at the end of the tunnel, and that their criminal history would not follow them indefinitely. I wish that I could tell them that one day soon, as long as they stayed out of trouble and kept their heads above water, their criminal record would not limit their job prospects, would not render them homeless, would not block their educational pursuits. In short, I wish that I could tell them that the Clean Slate Act was the law of the land.

Conclusion

I call on the New York State Senate Codes Committee to pass the Clean Slate Act, S1553A (Myrie)

/ A06399 (Cruz). The bill would provide meaningful relief to my clients, and the 2.3 million other New Yorkers who are currently struggling to overcome the stigma and civil barriers imposed by a criminal record. The current system erects a comprehensive array of impediments to reentry and reintegration that all but ensures failure. Moreover, and perhaps most critically, it erodes the confidence and hope of those with convictions, even long after they have served their sentence and purportedly paid their debt to society. The existing legal mechanisms that seek to offer some relief have fundamentally failed to delivery any measurable change. Instead, my years of personal and professional experience have convinced me that the sealing and expungement protocol outlined in this legislation is the only real means of ending the current cycle of perpetual punishment.

I was convicted in Pennsylvania, a state that passed a Clean Slate law in 2018. People with Pennsylvania convictions are eligible to have their record sealed for low-level offenses after ten years without any other convictions. Despite all that I have accomplished and my demonstrated

rehabilitation, I am ineligible for sealing under the Pennsylvania law. I urge the Senate to pass S.1553A because it does not exclude people with more serious felony convictions. Under the proposal under consideration today, I would be able to seal and subsequently expunge my conviction – automatically and without a protracted court process. It is critical that the Senate not carve out people with more serious convictions for relief under this bill. I think my story exemplifies that people can and do change and we all deserve the opportunity to obtain a Clean Slate.

If you have any questions about my testimony or New York County Defender Service’s reentry work, please email me at krowe@nycds.org.

 

1 The ban on Pell grants for incarcerated students was lifted by Congress in December 2020 through the “FAFSA Simplification Act”. Martinez-Hill, Juan, A Monumental Shift: Restoring Access to Pell Grants for Incarcerated Students, March 2021, available at https://www.vera.org/publications/restoring-access-to-pell-grants-for- incarcerated-students. The New York State ban on tuition assistance remains in effect. Human Impact Partners, Turning on the TAP: How Returning Access to Tuition Assistance for Incarcerated People Improves the Health of New Yorkers, May 2015, available at https://humanimpact.org/hipprojects/turnonthetapny/. NYCDS strongly support S.4464 (Jackson), a bill that would restore incarcerated people’s access to New York State’s TAP.

2 New York State Division of Criminal Justice Services, “Number of Individuals with Criminal Convictions Sealed via CPL 160.59,” Feb. 26, 2021, available at https://www.criminaljustice.ny.gov/crimnet/ojsa/Raise-the-Age- Provision-Sealing-Report.pdf.