Both Houses Pass Justice Equity Act or Qualified Agency Bill Granting Public Defenders Direct Access to Clients’ Rap Sheets
A Key Tool Needed to Confirm Expunged Marijuana Convictions Under MRTA
(Albany) Both houses of the State Legislature passed a long-standing criminal justice reform bill that provides all public defenders and assigned counsel with direct access to their clients’ criminal history records efficiency (S. 7073, Bailey and A. 7729, Peoples-Stokes). Currently, these providers must rely on district attorneys, police departments, and judges for access to their clients’ rap sheets, and in a number of counties they are denied access, such as Onondaga County.
Senator Jamaal Bailey said, "A fair and equitable justice system requires that public defenders and counsel have access to the proper resources needed to represent their clients. The passing of this bill creates a broader stroke of equity in our justice system. Instead of being steps behind, public defenders and legal aid societies will be in tandem with prosecutors by being granted automatic access to the criminal histories of their clients and being designated as ‘qualified agencies.’ As chair of the Codes Committee and sponsor of this bill, I am pleased that this bill passed both houses and that we will be a step closer towards equity and justice in our state."
Assembly Majority Leader Crystal Peoples-Stokes said, “The Justice Equity Act or Qualified Agency bill, provides defense attorneys with an important instrument to enhance justice and improve efficiency. It is a key tool to confirm expunged marijuana convictions under the MRTA law, and long overdue.”
Susan Bryant, Executive Director of the New York State Defenders Association (NYSDA), said, “Defense counsel cannot properly evaluate or investigate a case, assess a client’s eligibility for diversion or other programs, or determine the immigration consequences of their client’s case or the client’s predicate status without access to complete criminal history information. In 1990, the NYS Division of Criminal Justice Services (DCJS)* recommended such access. ‘Qualified agencies,’ as defined in Executive Law § 835(9), have access to criminal history information. This bill would add agencies and organizations that provide public defense representation and administrators of assigned counsel plans to the list of qualified agencies, so that those entities can enter into use and dissemination agreements with DCJS to access criminal history information.”
Kevin Stadelmaier, Chairperson of the New York State Association of Criminal Defense Lawyer’s (NYSACDL) Legislative Committee, stated “With the passage of the Marijuana Regulation and Taxation Act (MRTA) this year, it is imperative that this bill be passed into law to provided public defenders with an important tool. Allowing our attorneys to obtain their client’s criminal history report will assist in ensuring accuracy in the expungement of prior marijuana convictions. Additionally, timely access to criminal history reports assists in providing effective representation at all stages of a criminal matter; including pre-trial release applications, case investigation, plea negotiation, and sentencing advocacy. We urge the Governor to sign this essential legislation.”
Laurette Mulry, President of the Chief Defenders Association of New York (CDANY), said “We applaud the Senate and Assembly for passing this important bill which provides defenders direct and early access to criminal history reports. Delay in accessing this information slows the resolution of cases and causes court congestion. Direct public defense access to this necessary information will expedite proceedings and save county resources. Absent criminal history information, public defense lawyers cannot make effective pre-trial release applications, resulting in costly and unnecessary pretrial incarceration or supervision.”
Kathleen M. Dougherty, Executive Director of the Onondaga County Bar Assoc. Assigned Counsel Program, stated, “The Onondaga County Bar Assn. Assigned Counsel Program is especially grateful for the passage of the Qualified Agency bill by both Houses. We urge Governor Cuomo to sign the bill into law. Until now, we have not had direct access to rap sheets but instead have been compelled to rely on third parties to provide copies. As a result, access to our own clients’ rap sheets has been irregular at best. This bill’s expansion of the term “qualified agencies” to include indigent and public defense organizations allows us first-hand access and greatly improves our ability to fairly and diligently represent our clients at every stage of their cases.
Background: This bill passed the Assembly and Senate in 2019, and was unfortunately vetoed by the Governor, who stated in his Veto Message that existing law and the new discovery reform law provide access. However, defenders need direct and early access to criminal history reports, which is not afforded by the discovery reform and other laws. Since 1997, public defense providers that operate defender-based advocacy programs have been allowed access to the DCJS database to obtain the criminal history information of their own clients under Executive Law § 243(3).
*July 1990 DCJS’ Systems Improvements for Enhanced Community Safety (SIFECS) Public Defense State I Report