About This Report
A Red Herring
November 23, 2012

Methodological Appendix

Study Summary & New York State Sealing Laws

This study was designed to track the criminal justice trajectories of individuals who entered the low end of the criminal justice system for marijuana possession. However, the state’s sealing laws (namely Criminal Procedure Law §§ 160.50 and 160.55) limit our ability to reliably track the later criminal justice trajectories of individuals who enter the criminal justice system with an arrest that terminates in a dismissal or conviction for a non-criminal violation.

When a person is arrested with no prior New York State criminal justice contacts, a unique criminal justice identifying number, called a New York State Identification (NYSID), is generated and matched to the defendant’s fingerprints. If the person is convicted of a criminal offense (that is, the case is not dismissed and the defendant is not convicted of a non-criminal violation or infraction), then the New York State Division of Criminal Justice Services (NYDCJS) maintains a digital image of the fingerprint linked to the offender’s name, NYSID, and other identifying information. From that point forward, if the person is arrested, his or her prints are taken and matched to the NYSID and the criminal record is generated based on this match. All later records of this individual’s arrest events are linked together by the same NYSID in the DCJS database.

If a defendant’s case is dismissed in any fashion, all records of the proceedings must be sealed and—provided the state does not already have the defendant’s fingerprints on file from a prior criminal conviction—the fingerprints must be destroyed and de-linked from the NYSID.[69] If that same person is arrested after the sealing date he or she would be issued a new NYSID. This means that an individual could have a later arrest that would not be connected to the prior arrest by a common NYSID.

However, if the defendant’s case terminates in a marijuana Adjournment in Contemplation of Dismissal (ACD), as defined by Criminal Procedure Law § 170.56, then the fingerprints are not destroyed and de-linked from the NYSID. Because the statute forbids a defendant from being granted more than one marijuana ACD in his or her lifetime, New York Criminal Procedure Law § 160.50(1)(a) explicitly excludes the MJACD from the provisions of the sealing law requiring DCJS to destroy the fingerprints of defendants in these cases.[70]

If the defendant is convicted, either through a plea or trial, of a non-criminal violation—and provided the state does not already have the defendant’s fingerprints on file from a prior criminal conviction—then his or her fingerprints will also eventually be destroyed and de-linked from the arrest NYSID unless the court has issued a do not seal order.[71] If the defendant was convicted of a violation or infraction and sentenced to a conditional discharge, then the case remains on the person’s rap sheet for a year, after which (provided there is no other criminal conviction) the case is sealed, and the DCJS is directed to destroy the fingerprints and de-link the NYSID.[72] If the defendant was convicted of a violation or infraction and sentenced to time served, or a fine, or other sentence short of a conditional discharge, then the arrest may be sealed as soon as the defendant completes the term of the sentence and pays the fine and court-imposed surcharge if the court transmits the seal order. In sum there is no way to reliably track the subsequent criminal records of individuals whose first arrest terminates in a dismissal (except MJACD) or a non-criminal violation or infraction conviction.

This study therefore concentrates on those whose arrest terminated in a “marijuana adjournment in contemplation of dismissal” (MJACD), as defined in Criminal Procedure Law § 170.56 or Criminal Procedure Law § 210.46, because those individuals who enter the criminal justice system for low-level marijuana possession can be reliably tracked over time.

Data

The quantitative data comes from New York State Division of Criminal Justice Services (DCJS), which collects data from the courts and maintains it for the state. Some of the arrest and disposition aggregate statistics were provided in the aggregate form by DCJS. The remaining quantitative data was provided as micro-level criminal history records of a specific cohort of misdemeanor arrestees.[73] The micro-level data contains a de-identified identification number linking unique individuals to arrest and disposition events. Because DCJS provided de-identified records (that is, not identified by the official New York State Identification Number (NYSID) used in all court and corrections administration record-keeping and readily traceable to specific individuals), we were able to obtain sealed records of arrest incidents that did not terminate in a criminal conviction.

The file provided for each arrest event is called the “top charge” file, which means it lists only the highest-level criminal offense charged at the time of arrest and the highest-level criminal offense at the disposition and does not contain information on any other charges that may have also been included on the docket for a given case.[74] Data reporting the arrest or conviction charged therefore represents the highest arrest or disposition charge on the docket, and each case may have had other lower-level charges attached to that docket. DCJS, and not the authors, coded the cases for “top charge” and information about their ranking algorithm is available upon request.

Definition of the MJACD 03-04 Cohort

We included in our cohort, anyone who:

  • Received a MJACD from an arrest in the years 2003 and 2004
  • (Arrest year, not disposition year, qualified a person for the cohort)
  • Had no prior criminal convictions
  • Had a top arrest charge of marijuana possession in the fifth degree (New York Penal Law § 221.10)

We counted subsequent arrests and convictions if they occurred after the date of the arrest that led to the first MJACD disposition. If a person had more than one MJACD, the date of first arrest was selected as the beginning date, after which all arrests and convictions were tabulated.[75] We excluded subsequent arrest incidents that lacked arrest charge and disposition data.

The most recent date included in the DCJS data set was June 19, 2011. Since individuals entered the cohort at different times they were “at risk” of offending for different lengths of time. The earliest MJACD date was January 1, 2003 and the latest was December 31, 2004. Therefore the longest period of observation would be eight years, five months, ten days and the shortest would be six years, five months, eleven days.

Criminal Convictions

Convictions include non-youthful offender adjudications to criminal offenses obtained via plea, verdict, or type unknown. Criminal offenses include only convictions for penal law-defined printable misdemeanor or felony offenses. Counts of convictions for criminal offenses do not include convictions for non-criminal violations or infractions.

New York State data does not contain information on out-of-state arrests or federal arrests, so later arrests for conviction count will not reflect criminal justice encounters in other jurisdictions.

Violent Felony Definition

Our definition of violent felonies tracks that used by DCJS as defined in NY Penal Law §§70.02 and 70.04, which sets forth the offenses defined as violent felony offenses for purposes of sentencing and statutorily required record-keeping by the DCJS. We also include in our definition of violent felonies offenses that the DCJS codes as “VFO-like class A-1 offenses not in VFO,” as well as felony convictions where there was an underlying violent felony offense, even if that offense was not the top conviction charge.

Injurious Misdemeanor Definition

Injurious Misdemeanors include all misdemeanor convictions for crimes in the following penal law sections:

120 Assault     

130 Sex offenses

135 Kidnapping, Coercion

140 Burglary and Trespass only for the following subsections:

     140.15 - Criminal trespass in the second degree

     140.35 - Possession of burglar’s tools

150 Arson

165 Theft only for the following subsections:

     165.05 - Unauthorized use of a vehicle in the second degree

     165.09 - Auto stripping in the third degree

     165.40 - Criminal possession of stolen property in the fifth degree

205 Escape

215 Contempt and tampering

260 Child or Elderly Endangerment

265 Weapons

1192 VTL Driving Intox

  

[69] The district attorney may make a motion to block sealing in “the interests of justice” to the court upon notice to the defendant and his or her attorney within a specified time period after disposition; the court may also make its own motion to the same end upon notice to the defendant and his or her attorney. New York Criminal Procedure Law § 160.50(1).

[70] Thus, unlike prints taken from an arrest that terminated in other forms of dismissal, fingerprints taken from an arrest that terminated in a MJACD are maintained in the state’s comprehensive biometric database, called Statewide Automated Biometric Identification System (SABIS) and transferred to and maintained in the FBI fingerprint database.

[71] Prosecutors can, and in some boroughs often do, demand a permanent waiver of sealing as a condition of violation pleas. New York Criminal Procedure Law § 160.55(1) provides that the district attorney or the judge can make a motion to not seal the conviction, and if the judge enters a do not seal order then DCJS will not seal the case or destroy the fingerprints (Order Upon Termination of Criminal Action by Conviction for Noncriminal Offense; Entry of Waiver; Administrative Findings, New York Criminal Procedure Law § 160.55). In addition, Criminal Procedure Law § 160.55 exempts certain violation and infraction convictions from eventual sealing, such as certain loitering charges for the purpose of engaging in a prostitution offense, (New York Penal Law § 240.37), operating a motor vehicle while under the influence of alcohol or drugs (New York Vehicle and Traffic Law § 1192), or harassment in the second degree (New York Penal Law § 240.26) committed against a family or household member.

[72] The case does not print on the rap sheet after the conditional discharge period, but court records are not sealed, whereas court records are sealed in Adjournment in Contemplation of Dismissal (ACD) dispositions (Adjournment in Contemplation of Dismissal, New York Criminal Procedure Law § 170.55).  The judge also has the authority under 106.55 DNS.

[73] This data was provided by the New York State Division of Criminal Justice Services (DCJS) to Issa Kohler-Hausmann for an ongoing research project, in the interest of information exchange. The data was in the form of micro-level arrest incidents grouped by de-identified identification number. The analysis, opinions, findings, and conclusions expressed in this publication are those of the authors and not those of DCJS. Neither New York State nor DCJS assumes liability for its contents or use thereof.

[74] The only exception is for VFO convictions, where the file contained a variable for “underlying” VFO conviction so we could count as a violent felony conviction a conviction where the violent felony offense was technically a lower-grade offense than the top conviction charge.

[75] This does sometimes happen despite statutory bar.