Working behind the pastry shop counter at Brooklyn’s Albee Square shopping mall, 18-year-old Julissa Rivera tried to pay attention to her customers. But she was having trouble with a new security guard, Fred Bradley. He kept bothering her. Finally she had to recruit the help of a patrolling police officer to get the young man to leave her alone.
When the mall closed that night, April 23, 1988, Julissa was the last to leave. According to police, Bradley grabbed her, dragged her to a rear stairwell, brutally assaulted her with a firehose nozzle, then beat and strangled her. At his trial last year, Bradley confessed to the murder and was sentenced to 25 years to life in prison.
This was not Bradley’s first brush with the law. He had a serious criminal record, including several arrests for armed robbery, one conviction, and an 18-month prison term. How could such a man have been hired as a security guard?
The answer is that New York law is big on privacy—for criminal offenders. Albany has passed a whole series of laws to make sure that New Yorkers with long, violent records are not inconvenienced by them as they reenter society. This is good for the minority of released convicts who go straight—but even better for the majority of convicts who do not, such as Fred Bradley.
A detailed criminal record, a rap sheet, is among the most powerful indicators of whether someone will commit future crimes. But New York, unlike many states, keeps rap sheets entirely off-limits to the concerned public. It will not let the worried citizen check out a prospective roommate for larceny or assault convictions, or a would-be business partner for a record as a swindler, or a babysitter for a history of sex offenses. The secrecy extends not only to arrest records, but to conviction and sentencing records as well.
The state’s Division of Criminal Justice Systems (DCJS) in Albany, which keeps the state’s rap sheets, will usually come across with some data when the law requires a criminal-record check before someone is hired or licensed. When people apply for police, security-guard, or day-care center jobs, the licensing agency sends DCJS their name and fingerprints. What it gets back, however, is not a detailed rap sheet, but usually only a brief up-or-down summary, enough to pass or veto the application.
The process takes time, and many guards are on the job for months before their background checks are complete. Reginald Darby was one: He had been hired as a security guard at Columbia University despite an extensive criminal record. Last February, Darby used his guard status to enter a women’s dormitory, where he raped a female student at knifepoint.
Delay was not the problem in the Albee Square Mall case. The state’s Division of Licensing Services received the inquiry about Fred Bradley in good time, and would normally have warned the guard company about his criminal record. Bradley, however, benefited from a second layer of New York’s elaborate protections for criminal privacy. A Manhattan court had put a “certificate of relief from civil disability in his file under Article 23 of the state’s Correction Law. Such a certificate declares the subject “rehabilitated” and forbids any release of information from the file. The unsuspecting guard company—and Julissa Rivera—were out of luck.
All of which makes a bizarre contrast to the fishbowl lack of privacy elsewhere in our legal system—in civil lawsuits, for example. Had Fred Bradley been a doctor charged with malpractice, any and all charges against him—even if dropped before trial or shown to be unfounded—might have become permanent records, later published in consumer guide books. The state trusts patients and hospitals to assign no more than appropriate weight to the past legal trouble of suit prone MDs.
In criminal cases, however, New York keeps portions of its rap-sheet data base off-limits even to police departments. Many juvenile records are held back, for example. And Gerald Kerwin, chief of identification operations at DCJS, says Section 160.50 of the New York criminal procedural law routinely directs courts to seal records of arrests that do not result in convictions. If Westchester or Nassau detectives suspect a drifter of rape, his court-sealed arrest on similar charges in Brooklyn or Manhattan “would not turn up” in their routine state check, Kerwin says.
This makes life a holiday for border-hopping New York thugs. Police know that full arrest-plus-conviction rap sheets are far more valuable than conviction-only records, both in signaling the activities of repeat or career criminals and in profiling the modus operandi of their crimes. Huge numbers of arrests fall to result in convictions for reasons that have nothing to do with innocence. Witnesses scatter and victims fall to press charges, especially in sex crime cases. Of every 1,000 felonies, only about 80 result in an arrest, far fewer lead to conviction, and only 17 result in Imprisonment.
Moreover, 80 to 90 percent of convictions follow plea bargains, usually to lesser charges, and only the lesser charges show up on a conviction-only record. (Reginald Darby’s record was sanitized in this way, with several felonies plea-bargained down to misdemeanors.) A full rap sheet including all arrests will show whether an assault conviction was plea-bargained down from, say, robbery, rape, or aggravated assault-giving police vital pointers as to what kind of crime a suspect may commit in the future.
With Albany refusing to share vital information, local police forces are left to “horizontal cooperation”: Westchester cops can phone around to neighboring jurisdictions one by one. But real cases unfold minute by minute, with detectives often working against the clock. Delay can be tragic.
New York law provides yet another layer of protection for criminals. Under New York law an employer who somehow learns that an applicant has a long, brutal criminal record must hire him anyway. This obligation appears, with Orwellian logic, in New York’s “Human Rights Law” of 1976: “It shall be an unlawful discriminatory practice for any person ... to deny any license or employment to any individual by reason of his having been convicted of one or more criminal offenses.” The only exceptions are spelled out in Article 23-A of the New York Correction Law: if “there is a direct relationship between ... the previous criminal offenses and the specific license or employment sought,” or if the license or employment poses an “unreasonable risk” to the public [emphases added]. To the lawyer, the use of imprecise words such as “direct” and “unreasonable” are flashing red danger signals of an unpredictable outcome in court. The New York employer who openly favors job candidates with clean police records had better have deep pockets to handle any eventual back-pay award.
Privacy laws are meant to protect rehabilitated criminals. Sadly, these are few and far between. A 1987 National Institute of Justice survey of more than 2,000 state prison inmates found that each convict averaged more than 187 crimes per year while free, excluding drug deals. And a Bureau of Justice Statistics survey of more than 108,000 inmates who were released in 1983 found that two-thirds were rearrested for a serious crime within three years.
There are signs that the public is getting fed up with the notion that criminal records are a private matter. For one thing, secrecy laws often serve to shield negligent public officials from public scrutiny. When, in separate incidents, two Bronx 5-year-olds died from abusive beatings, state and city officials refused to release any information from child welfare records that might have shown the social services bureaucracy negligent, citing Section 422 of the state’s Social Services Law. Secrecy laws likewise often protect parole boards and correction officials from scrutiny.
In the Darby assault case, privacy rights were taken to an even more gruesome extreme. The rape victim was desperate to know whether Darby carried the AIDS virus. But New York law protected, on grounds of privacy, Darby’s right not to reveal this or submit to testing, even if convicted of the rape. To get him to cooperate, Manhattan prosecutors quietly offered—and Darby accepted—a plea bargain that substantially reduced his prison sentence.
Crime and punishment are not private matters. Crimes are public assaults to which public agencies respond through the classically public steps of arrest, indictment, trial, and imprisonment. For the occasional citizen wrongly arrested, or the rare rehabilitated criminal, an appropriate remedy might be more sunlight rather than less: adding to the file a memo recording legal vindication or a long stretch of good behavior. Nor does the federal Constitution oblige New York to keep criminal records under lock and key. Florida, Oklahoma, and Wisconsin follow “open records” policies that work smoothly and are fully consistent with the Constitution.
Crime thrives in the unlit places. The simplest, least expensive way to fight it is to let people protect themselves in the first place. It helps a lot to know who the potential enemies are. Why won’t New York let its citizens find out?