How Does The Clean Slate Act Compare To Laws In Other Countries?

There is an old saying that fashion trends start in Europe before crossing the Atlantic a few years later. Then they are distributed throughout North America from New York and Los Angeles. While there once was some truth to this belief, fashion houses in the New World might beg to differ. Nonetheless, when it comes to criminal justice reform, it does seem like the Old World has become more advanced than the United States.

Numerous other countries have already addressed issues like rehabilitation, sealing prior convictions and allowing justice-impacted people to re-enter society. These countries have seen how a felony conviction can stand in the way of employment. And they have already taken steps to address the situation. But, compared to these other countries, the United States still lags behind when it comes to ideas like New York’s Clean Slate Act (or even other Ban the Box proposals).

The Issue With Comparative Law Exercises

One of the threshold issues when comparing laws from different nations is that no two systems of law are identical. For example, the United States follows a common-law system, just like the United Kingdom, Canada and Australia. Under the common law, courts interpret the written laws such as the United States Constitution and the New York Penal Code in light of judicial rulings and prior customs. As a result, the laws are subject to interpretation both by the enforcement arm of the government and the judiciary.

But civil-law countries like Germany are different. There, the laws are interpreted as written. So, the role of judges changes with them acting as a super tribunal that not only determines guilt or innocence but also can question the parties. In this sense, they become actively involved in investigating the facts of a case. This is in stark contrast to the American system. Here, the two teams of lawyers act as advocates for the State and the defendant in an adversarial manner. And the judge serves the role of impartial referee.

Limited Jurisdiction For The Federal Government

Another major issue deals with jurisdiction. In the United States, the federal government has limited areas of law enforcement, dealing with matters like international terrorism, securities fraud, interstate drug deals and currency forgery only. Each of the 50 states and the District of Columbia handle the vast majority of criminal matters. In other words, the states generally have more power than the federal government when creating the penal codes and handling matters of law enforcement.

This is the exact opposite of England and Wales, whose power with respect to criminal justice is non-devolved in the United Kingdom. This means that the U.K. Parliament and the government at Westminster determines which acts constitute crimes in these two parts of the Kingdom. Similarly, the Canadian Parliament has exclusive jurisdiction over criminal law and procedure under the 1867 Constitution Act. As a result, the provinces only handle law enforcement, while the central government writes the criminal code.

Australia and Germany are actually similar to the United States in this regard. Both countries make the states and territories solely responsible for enacting and enforcing the criminal law. So, what may be illegal in one state might be fine in another; in a similar fashion to how the United States deals with marijuana. 

The U.K.’s Rehabilitation of Offenders Act

One of the first nations to deal with the issue of prior convictions standing in the way of justice-impacted persons re-entering society was the United Kingdom. Authorities in the U.K. saw that having a conviction record was standing in the way of many people getting adequate employment, even if the conviction resulted in a fine, warning or community service. As a result, the U.K. enacted the Rehabilitation of Offenders Act in 1974.

The Rehabilitation of Offenders Act allows records of convictions to become “spent” after the passage of time. This means that prospective employers cannot consider them. Therefore, a person with a spent conviction does not have to report it to most prospective employers. And the prospective employer cannot take it into consideration when hiring the person.

Timing and Scope Limitations on the U.K. Rehabilitation of Offenders Act

This Act operates under a number of timing mechanisms. For example, imagine you were convicted as a minor and spent more than six months in prison. Your conviction will be spent after five years have past from the date of conviction. If you faced a prison sentence of less than six months as a minor, a spent conviction takes three and a half years. Paying a fine or doing community service as a minor reduces the waiting period further to two and a half years.

Convictions for adults are a little longer: ten years for those incarcerated for more than six months, seven years for those imprisoned for less than six months and five years for those adults who paid a fine or did community service.

There are also some limitations to the scope of this law. First, if you must serve more than 30 months of incarceration, the spent-conviction law does nothing for you. This is true regardless of the nature of the conviction. Second, if you have multiple convictions that you serve consecutively (back to back) and not concurrently (at the same time), and they add up to more than 30 months, then the convictions will not be spent, either. Also, committing another offense before the first one is deemed spent could, in certain circumstances, reset the clock. Finally, certain jobs require that you disclose the record of a conviction even if it is spent. Examples include jobs involving children or vulnerable adults, as well as working in law enforcement, the legal system and high-level financial positions.

Comparing the U.K.’s Law to New York’s Clean Slate Act

As you can see, the U.K. Rehabilitation of Offenders Act does not compare favorably to the proposed New York Clean Slate Act, which only requires a defendant to wait seven years for the sealing of a felony conviction and three years for a misdemeanor. The New York Act also does not differentiate on the basis of length of sentence or type of conviction, except in the case of sexual offenses. Nevertheless, like the U.K.’s law, it requires disclosure for certain jobs, like ones in law enforcement. 

Australian Spent Convictions

Australia has a similar spent-convictions regime as the one in the U.K. But Australia operates as a federal system. Therefore, there is one for the central Commonwealth government, the Crimes Act of 1914, as well as one for each of the states and territories. The only exception is Victoria, which has never enacted a spent-conviction law.

Just like in the U.K., a conviction is deemed spent after the passage of ten years for people convicted as adults, and five years for those convicted as a minor. However, sentences of greater than 30 months of incarceration never become spent, nor do convictions for sexual offenses.

Unlike the U.K. Act, the waiting period does not start until the person’s release from incarceration. Also, conviction for a subsequent crime will restart the waiting period in most cases.

Again, this is not as broad as the New York Clean Slate Act or what we see in other countries. And it also requires a longer waiting period for most justice-impacted people. As a result, the New York Clean Slate Act is a much more favorable statute than the one currently in force in most of Australia.

The German Federal Central Register Act

Germany has a federal system like the United States with respect to criminal justice. Consequently, it maintains a Federal Central Register for all criminal records in the country. The law regarding the Federal Central Register governs this issue. In general, under Section 34 the Act, officials remove convictions from the Register after the passage of time. So, justice-impacted people in Germany can get Good Conduct Certificates with a clean slate, often as early as three years after the date of conviction.

This applies to juvenile convictions as well as ones where the defendant either served one year of imprisonment or less or simply paid a fine. However, in most cases, a person will have to wait up to five years. If a person has a criminal conviction for a sex crime (Sections 174 to 180 and 182 of the German Criminal Code), then the waiting period is ten years. Still, this is a much more liberal law than either the UK Rehabilitation of Offenders Act and the New York Clean Slate Act, allowing many Germans with felony records to get on with their lives at an earlier time than their counterparts in other nations.

The Canadian Criminal Records Act of 1985

Canada enacted a law in 1985 allowing justice-impacted people to have their conviction records suspended by petitioning the Parole Board of Canada. This feels similar to the current situation in New York State, where such petitions may have criminal records sealed for ten years after release from incarceration. In Canada, the time periods are ten years for any sentences of more than six months or fines over $5,000, and five years for sentences of less than six months.

Just like in the current situation in New York, the period starts upon completion of any period of incarceration, period of probation and payment of any fine. Also, like the New York Clean Slate Act, Canadians convicted of having sexual relations with a minor are generally ineligible to take advantage of this law. However, there is no mechanism for the automatic sealing of records like under the New York Clean Slate Act and similar laws from other countries.

Other Countries Leading The Trend

Of the countries surveyed, Germany has the most liberal law when it comes to sealing records of justice-impacted people. Germany only requires a waiting period of about five years from conviction. That’s less than the seven years under the New York Clean Slate Act. Also, Germany does not differentiate as to length of sentence and nature of the crime. That’s something we don’t see in any of the other countries.

Both the U.K. and Australia revolutionized this area with their respective spent-conviction laws. But they both have since lagged behind. Neither have a mechanism for sealing records for anyone who served more than 30 months of imprisonment. As for Canada, the current law does not provide for automatic sealing of records. That’s something that happens in other countries and New York if it passes its Clean Slate Act.

There is one major downside to the situation in the United States. Germany and Australia may be similar to the United States in having a federal system on criminal justice. But Germany has only 16 federal states, and Australia has just six states and two territories. For example, in Australia, every state and territory adopted the spent-conviction law. The only exception is the relatively conservative state of Victoria.

New York’s Clean Slate Act Could Set The Trend In The U.S.

It is much less daunting pushing through criminal justice reform like the Clean Slate Act in these countries than in the United States. These other countries addressed the issue of sealing records either at the national level or in the states. Yet reformers in the U.S. face the daunting task of passing laws like the Clean Slate Act in 50 states, the federal government and the District of Columbia to get any sort of traction on the issue. The only hope is that, just like fashion, New York will set the trend by adopting the Clean Slate Act, and the other states will then follow suit.