Little Things That Matter
In one of my recent arraignment shifts in Bronx Criminal Court, I represented a 17-year-old female arrested for "loitering for the purpose of engaging in a prostitution", defined by section 240.37 of the Penal Law. My client lived with her mother and attended school, was intelligent and polite, and felt embarrassed by, ashamed of, and regretful about her mistake (including caving into pressure from her friends).
In New York, a first-time conviction of loitering for the purposes of prostitution under Penal Law 240.37(2) is a violation, not a crime, and thus does not result in a criminal record.
However, unlike most other violations (non-criminal convictions), a conviction of loitering for the purposes of prostitution is never sealed by New York State. In other words, even though it is not a crime on paper if it is someone's first time, it nonetheless never disappears from that person's "criminal" history (also known as their "rap sheet").
Put another way, although my client could always say that she had never been convicted of a crime, a background check would reveal that, at some point, she had been arrested and convicted of a prostitution-related offense. The consequences of such an irremovable stain, most predictably the resulting prejudice when a prospective college admissions officer or employer discovers it, is obvious.
The permanent place of this particular violation on her record, then, is not insignificant, particularly as she looks ahead to future educational and employment opportunities.
So, as I stood before the judge, my 17-year-old client shedding tears beside me, I asked the Assistant District Attorney if he would considering offering my client a different violation --- "disorderly conduct"--- a catchall provision of the Penal Code which has the same legal import as the "loitering for purposes of prostitution" violation but would be erased from my client's record in one year. Why should a single prostitution offense, arising from a police officer's allegations that he saw my client beckoning to 3 male passengers in vehicles and 3 male pedestrians over a period of 5 minutes, follow my client around for the rest of her life? Why should it potentially limit her academic and professional opportunities? What does our society, or the criminal justice system, gain from permanently attaching to this young woman the inevitable societal stigma of having attempted to engage in prostitution?
But the Assistant District Attorney would not budge. "It is still a violation, and she won't get a criminal record." "I know," I replied, "but that is not the point. The point is that it will never disappear from her record; it will follow her wherever she goes."
The prosecutor shook his head. "It's our policy. First-time prostitution offenders must plead to the prostitution section."
"Then we are not interested," I told him.
My client was released to go home to her mother, with a referral from me to one of our social workers, and return to court another day. In the meantime, my office will have to see if it can convince the District Attorney's Office to abandon its hard-headed, counterproductive policy (so many of which are often blind to their detrimental collateral side affects), and allow this young woman, in one year's time, to move forward with a clean slate.
To prosecutors, busy fighting crime and representing "the People", such secondary issues as whether or not a violation gets sealed (along with many other "collateral consequences") appear minor; but to our clients, who already face tremendous obstacles both within and outside of the criminal justice system, they can mean the difference between having a job and being unemployed, gaining or losing custody of their children, remaining in this country or being deported, or securing public housing or being homeless. In other words, they can mean everything.
Hopefully, for this client and hundreds of others, the District Attorney's Office will realize that.