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

Legal Issues

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.

Filed Under: nypd, police, the marshall project