Drug Laws Worry Lawmakers

James L. Seward

June 09, 2009

The Daily Star

By Jake Palmateer

A state law that took effect Monday allows some convicted felons to have criminal records hidden from prospective employers, including school districts, day-care centers and nursing homes.

The measure, passed with the adoption of the state budget, allows nonviolent drug offenders to have one felony and three misdemeanor convictions from a list of 26 charges sealed. Under the new rules, a judge may seal the records after a defendant completes drug-court intervention.

The eligible convictions include drug sale and possession charges, as well as burglary and grand larceny charges.

"I don't understand it," Otsego County District John Muehl said Monday. "A criminal record is a criminal record. When you are an adult and you go out and commit crimes against others, I don't see any reason why you should have the benefit of having your conviction sealed."

Muehl said young offenders were already able to apply for youthful-offender status and have their records sealed.

The new measure is part of a sweeping reform of the Rockefeller drug laws passed in 1973.

A day before it went into effect, Oneonta City School District Superintendent Michael Shea said he had not heard of the provision.

"It seems there was very little, if any, public discussion about this," Shea said.

Sen. James L. Seward, R-Oneonta, and Sen. John Bonacic, R-Mount Hope, are co-sponsoring legislation to repeal the provision, which Bonacic dubs the "Drug Dealers Protection Act" in a media release.

"This change defies all common sense because it would effectively wipe the slate clean for drug dealers who undergo criminal background checks when seeking employment in certain positions," Seward said last week. "This means convicted drug dealers could be taking care of children at a day-care center or as a nanny, teaching at a school, or working at a nursing home or some other position of trust."

When schools send fingerprints of a prospective employee to the state for a background check, the response is an "accepted or rejected," Shea said.

Through this process, the district does not learn why someone may have failed a background check, Shea said.

In the course of hiring a prospective employee, he or she is asked by the school district if he was ever convicted of a felony, Shea said.

Assemblyman Pete Lopez, R-Schoharie, said Assemblyman Dave Townsend, R-Sylvan Beach, intends to introduce companion legislation in the Assembly.

Lopez said the measure was intended to integrate drug offenders back into society.

"Certainly, you want people to be able to move forward and be productive citizens," Lopez said.

There is a constant balancing act between the right to privacy and the public's right to information, Lopez said.

But Lopez said that in this case, "the pendulum swings too far."

Muehl said the state district attorney's association is opposed to the new provision. But Muehl said he doesn't envision judges in Otsego County or elsewhere in rural New York sealing many records.

Gov. David Paterson, a Democrat, has defended the provision, as has Democratic Assembly Leader Sheldon Silver. Democrats have also controlled the Senate this year, but a vote Monday switched the Senate to GOP control through a coalition with two New York City Democrats.

Lopez, Seward and Bonacic said the measure is a result of a state budget process held behind closed doors.

"The changes to New York's drug laws were rushed through as part of the state's secret budget process," Bonacic said in the release. "The New York City Democrats who controlled the budget process claimed to be thrilled with these changes, and now we see the results. Secret negotiations combined with a soft-on-crime attitude have left New York with a dangerous public policy we must stop."