Testimony: Automatic Expungement Is the Only Way – Next100
Commentary   Criminal Justice

Testimony: Automatic Expungement Is the Only Way

Testimony of Michael “Zaki” Smith to the New York State Assembly on December 10, 2019.

I am one of New York State’s six million and the country’s 70-100 million individuals that have been impacted by the criminal justice system.

I served my time.

But I am currently serving a life sentence of perpetual punishment, known as collateral consequences.

After being released from prison in 2004, I knew two things with every ounce of my existence: That I would work to help improve the lives of young people; and that I was not going back to prison. Both of those things remain true to this day.

But I didn’t know about the laws that would get in the way of my best efforts.

On December 14, 2017, as I got ready to head out for work, I saw a letter that was addressed to me from the fingerprint unit of the New Jersey State Board of Education. I didn’t know that letter would change my life. For the past four and a half years I had been working for a nonprofit organization called The Future Project as a dream director, at East Side High School in Newark, New Jersey. I loved the work: empowering young people, helping to build school spirit and culture, helping to remove disempowering norms, and creating space for young people to pursue their passion and purpose. (And that was after another ten years prior to that spent working with other nonprofit organizations that help to empower young people.) I had an amazing relationship with my principal, staff, and students at the school. I loved my job; and most of all, I loved the students I worked with every day.

But I opened the letter to discover that none of that mattered. The New Jersey State Board of Education said that I could no longer work in any school in the state of New Jersey, due to my criminal history. And that was that. The only option the document left me was to refute the accuracy of my criminal history—which I could not do. There was no option to show who I had been in the world in the fifteen years since my release from prison. No option to demonstrate the ways in which I had contributed powerfully to the lives of countless young people and my community. No option for the school and community I worked with every day to show their support for me and their belief in me. No way to demonstrate the shift in my own personal mindset, the shift in my whole life.

Instead, I discovered a term I had never heard of in my life: “Collateral Consequences.” I was up against the 44,000 distinct legal barriers that can legally deny employment, housing, occupational licensing—all the things that would allow me to remain successful. This has left me and six million other formerly incarcerated New Yorkers Civically Dead.

Each year, 620,000 people are released from prisons and jails nationally. With these barriers, what are the chances of a person successfully returning to society? Can any amount of desire and effort on their part make any difference against such obstacles?

Where do they live, if both public and private housing can deny them a roof over their head, even if they can afford it?

Where do they work, if employers, large and small, can deny them a job they are ready, willing, and able to do?

What are the opportunities for their education, if schools can deny them admission, or financial aid, on the basis of their record?

There’s no such thing as a second chance if it isn’t fair. Without stable employment, housing, and access to education, it is difficult for those who have been incarcerated to successfully reenter their communities as productive citizens. We’ve been encouraged to obtain those stabilizing life circumstances. But when met with the laws of collateral consequences, the possibility of recidivating becomes a reality.

And while I know it was supposed to be an improvement, as designed, New York’s sealing law, 160.59, creates a barrier in terms of who is redeemable and who isn’t.

160.59 is limiting in a number of ways that must be addressed if we are truly going to end this life sentence of perpetual punishment that blocks people from accessing their basic needs to sustain themselves and their families:

  • We must make the process automatic. While 160.59 says a certain set of people are deserving of redemption, it creates hoops to jump through. Many people don’t even know this process exists, and if they do, they may get stuck in the process.
  • We must expunge records, not just seal them. Sealing creates too many loopholes for access. It is not real.
  • We must expand who it applies to—currently 160.59 is too limited in terms of who it applies to. Everyone outside of the current limited eligibility will continue to be punished by collateral consequences—for the rest of their life. And people with more than two low-level offenses or violent offenses will continue to be punished—for the rest of their lives. No matter what positive contributions they have made to their communities, no matter what positive contributions they have made to society—for the rest of their lives. They’re not redeemable.

The State of New York has set the standard for forward progress in so many areas. As a proud New Yorker, I am ashamed that we are not taking bold and innovative action here. We lead in so many areas—in culture, in style, in social progress. Now you have a unique and powerful opportunity to set the bar of what redemption and restoration looks like in the country. Automatic expungement is the only way.

I leave you with this: After I have served my time, what other debt do I owe?

About the Author

Portrait of Michael Zaki Smith, he has closely cut hair, and a short beard.
Michael “Zaki” Smith Criminal Justice

Michael “Zaki” Smith is an entrepreneur and activist with more than fifteen years of experience in youth empowerment and social justice. At Next100, his work focuses on dismantling the collateral consequences of incarceration, policies that have impacted him personally as a formerly incarcerated individual.

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