New federal expungement filing raises stakes for DOJ

Not surprisingly, in the wake of U.S. District Judge John Gleeson’s extraordinary May 21 expungement order in Doe v. U.S., another petition asking for the same relief has now been filed with Judge Gleeson.  Also not surprisingly, since this new petition was filed by one of Ms. Doe’s co-defendants, the underlying facts in this second petition are similar. The second Jane Doe was a more culpable participant in the insurance fraud scheme, and was sentenced to 15 months in prison instead of probation.*  However, she has remained law-abiding since her release more than a decade ago, and like the first Jane Doe she has had a very difficult time getting or keeping a job because of her conviction.  It seems unlikely that the difference in the second Jane Doe’s role in the offense will make a difference in the way the court disposes of her petition.

Judge Gleeson has asked the government to show cause why the new petition should not be granted, which should guarantee that it gets attention at the highest levels of the Justice Department.  Argument has been set for September 18.  If there were any doubt about whether the government will prosecute its appeal of the first expungement order, it has probably been dispelled now that the proverbial floodgates appear to be opening. Potential amici should start lining up counsel.

One issue that will at some point have to be resolved is what effect the expungement order will have in situations where employment restrictions are imposed by state or federal law, as they frequently are in the health professions for which both Jane Does are trained.  The question whether an expungement (unlike a pardon) will avoid statutory bars to employment is frequently unsettled even where that relief is specifically authorized.

It is worth noting that both Jane Does have been repeatedly offered employment and only later terminated after their convictions were discovered during a background check. The fact that no questions were asked at least by some employers before the two women were allowed to start work suggests that the ban-the-box policy recently put in place by Mayor DeBlasio may have a somewhat limited effect, at least where health care jobs are concerned.  The brief accompanying Jane Doe II’s petition points out that her conviction has nothing to do with her performance as a nurse, but the “substantial relationship” standard incorporated into New York’s nondiscrimination law does not appear to have deterred the employers who repeatedly terminated her.

Finally, it will be interesting to see if Judge Gleeson engages in as detailed and thorough an analysis of the facts underlying this second petition as he did with the first.  If expungement petitions are now to become routine in the Eastern District of New York, it seems important to find an efficient way of dealing with them.

 

* The second Jane Doe was re-sentenced in 2012 to 11 months in prison, long after her release, perhaps to avoid her conviction being grounds for mandatory deportation.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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