NYPD, Prosecutors Illegally Using Expunged Criminal Records To Perform Investigations, Ask For Longer Sentences

from the laws-are-for-little-people dept

You’d think an entity with the name “New York Police Department” would at least have some passing respect for the law. But the more time you spend examining the NYPD, the more you find it acts in opposition of almost every law meant to control it. Sure, it’s more than willing to kill you over unlicensed cigarette sales, but it can’t seem to hold any of its own accountable for their multiple violations.

Anything meant to bring a modicum of accountability to the agency is met with a shrug of official indifference. The only thing that’s been proven to effect change in the department is orders from federal judges, and even these are greeted with foot-dragging and brass-enabled resistance.

Adding to the annals of the PD’s refusal to play by rules it doesn’t like is this report from The Marshall Project. The NYPD and city prosecutors are using supposedly expunged arrests to push for plea deals, longer sentences, and the denial of bail.

In one case examined by The Marshall Project, a man arrested for being in a vehicle that also contained an unlicensed handgun assumed he’d get cited and fined because of his lack of a criminal record. Instead, the man (referred to only as J.J.) watched as the city prosecutor produced printouts of expunged charges from back in the PD’s stop-and-frisk heyday to argue for a prison sentence. J.J. had never been convicted of a crime, but the city was presenting records that should have been removed from the system to argue he was a career criminal.

J.J. is now suing the city and the NYPD for its refusal to follow state laws on the handling and use of expunged criminal records.

J.J. is one of the lead plaintiffs in an ongoing lawsuit against the City of New York and the NYPD brought by the Bronx Defenders, a group that provides free legal services to people who can’t afford a lawyer, and a private law firm. The suit alleges that the police department has for years illegally used databases of arrests that were supposed to have been dropped, declined by prosecutors, downgraded to citations or infractions, or otherwise thrown out in court.

According to the claim, cops around the city have access—on their smartphones—to reservoirs of records they shouldn’t be able to see, allowing them to continue to stop, search and arrest people in neighborhoods like J.J.’s based on “criminal histories” that shouldn’t even exist.

The NYPD claims it’s still on the right side of the law, even as it ignores its letter and spirit.

Sgt. Mary Frances O’Donnell, an NYPD spokeswoman, said in an emailed statement that despite the Bronx Defenders’ claims, the department is in compliance with New York’s sealed-records statutes because it does not disclose sealed data to any third parties and only uses the records for investigative purposes, consistent with its public-safety mission.

Using expunged records to argue for heavier sentences is not, by any stretch of the imagination, “using records for investigative purposes.” The fact that the NYPD can pull up sealed/supposedly destroyed records at the touch of a screen is disturbing. It tells officers more than they’re legally allowed to know about the person they’re dealing with.

As for the “no third parties” claim, the plaintiffs argue anyone outside of the PD — like prosecutors — are very much “third parties” who should not have access to these records. And they’re not the only ones obtaining these records that shouldn’t even exist.

The Bronx Defenders has countered that the NYPD does in fact routinely disseminate sealed data to third parties, including prosecutors, the news media and housing, immigration and family-court officials. This has left some New Yorkers at risk of losing their homes, getting deported, or having their children taken from them due to long-ago, dismissed arrests not being properly erased, the group says.

The NYPD has argued the law doesn’t actually require it to stop using expunged records this way. The court, in denying its dismissal, called the NYPD’s interpretation of the law “strained.”

Unfortunately, this isn’t a practice limited to the NYPD. The NYPD may be making the worst of a bad situation by holding onto records compiled during its stop-and-frisk years, but half the states in the nation specifically allow police officers to access expunged records. But in the other 25 states, strict limitations govern access to these records, just like they do in the state of New York.

To gain access, [officers] must formally request court permission or a waiver from a state records official, articulating a specific reason why they need the documents.

But the NYPD is uninterested in being restrained. After all, it amassed millions of records during its many years of suspicionless stops and arrests, and it would be a shame for all that data to go to waste. Once again, it’s going to take a court to make a law enforcement agency respect the law.

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Comments on “NYPD, Prosecutors Illegally Using Expunged Criminal Records To Perform Investigations, Ask For Longer Sentences”

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dr evil says:

Re: fixed that for you

they will grudgingly accept the outcome, then continue doing what they were doing – using parallel construction or whatever tool they can concur up.

fixed that for you.

(yes, they will continue to screech ‘muh security’ ‘ officers fearing for their safety’ ‘qualified immunity’ ‘only a tiny violation of your civil rights for your own good’ etc)

Anonymous Coward (user link) says:

What jurisdiction do you live in that this isn't de rigueur?

That’s how they do it in Chicago too.

Nothing is ever really expunged unless you explicitly file for expungement, and even then it’s not like those records simply disappear.

I’m pretty sure if you needed to get security clearance for a job, the background check for that would still uncover any expunged records.

And I’m pretty sure that, regardless of the overall legality of the arrests, if you’re out there getting busted for the same kinds of things that were previously expunged, it’s not as though the courts will somehow be oblivious to those previous arrests.

You can expunge all you want but the police station where the arrest occurred is never going to destroy your file. Neither is the NCIC.

TL;DR: Once arrested you will always have a file with various agencies. It’s just a matter of who it is visible to. It is never deleted.

Anonymous Anonymous Coward (profile) says:

Re: Re:

That copyright infringement in the posting of laws only pertained to the annotations made by third parties, not the law itself (right or wrong).That the actual law is available, to the average smart phone (OK finding the relevant law might be beyond the ken of the average user) user makes the law available to everyone. Even cops.

This is in conflict with the Supreme Court decision where cops don’t need to know the laws they enforce. Having the law knowingly available on their smart phones would put that concept in the dustbin. The fact that the law is available to individual law enforcement officers brings the question of whether they need to know vs can know to the forefront. What if they did know, but chose to ignore, or worse, did know but didn’t care?

They are hired to enforce the law. Not knowing the law they are hired to enforce seems like what they were hired for was not enforcing the law. So what were they hired for?

Anonymous Hero says:

You could’ve just clicked on the "LOL" button because I was trying to make a joke.

But you raise worthy questions. For what are they hired? I don’t know; I’ve never worked in law enforcement.

I pulling at straws here, but maybe they’re hired to close cases, clears stuff off the back log, pull people over for driving above the posted speed limit, shoot black people, etc.

Think of any other company. The goal is to do stuff that shows progress according to the internal tools used by the company to measure progress.

mechtheist (profile) says:

Re: "Isn't that a violation of double jeopardy?"

Do you mean using past criminal records? No, double jeopardy pertains to being tried twice for the same crime. Your past criminal record is almost always used in determining sentencing, your un-expunged criminal record supposedly. Besides, double jeopardy is almost a laughable anachronism in many circumstances, especially drug crimes. The states have their laws and the feds have theirs, it’s "dual sovereignty”, so if the state tries you and you walk, the feds can still step in and take their shot. If you’re really unlucky and travel, you can have multiple states charge and try you for the same crime as long as there is some pretext that the crime affects both states. DAs are very creative in these things.

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