Another federal expungement case from Brooklyn – is this the beginning of a trend?

On October 8, a former chief judge of the Eastern District of New York held that he was “constrained by controlling precedent” to deny the expungement petition of a woman who feared that her 23-year-old fraud conviction would prevent her from obtaining a nurse’s license.  See Stephenson v. United States, No. 10-MC-712.  Judge Raymond Dearie declined to find the “extreme circumstances” warranting expungement under Second Circuit precedent, noting that the petitioner before him was fully employed and that her aspiration to become a nurse was realistic, in light of the protection afforded her by New York’s nondiscrimination laws.  He proposed that his own willingness to certify her rehabilitation could help satisfy the “good moral character” standard for a nursing license. (Could this be the sort of “certificate of rehabilitation” contemplated by Judge John Gleeson in his second Jane Doe expungement case?  If so, it would seem to require no specific statutory authority for him to issue it to an individual he sentenced, no matter how long ago.)

Judge Dearie contrasted the case before him with the one in which Judge Gleeson ordered expungement in May, where the petitioner’s criminal record was having “a dramatic adverse impact on her ability to work,” citing Jane Doe I at *5.   The government has appealed Judge Gleeson’s expungement order.

At the same time, Judge Dearie stressed his agreement with Judge Gleeson — and disagreement with prevailing caselaw — that economic hardship or negative employment consequences may warrant expungement.

Much has changed, however, in the four decades since the Second Circuit first wrote that “extreme circumstances” must be present to warrant expungement. For one, there is now a great deal of solid evidence establishing that a criminal conviction often is a significant obstacle to employment, in some situations even creating the dire financial circumstances that, in turn, are strongly linked with recidivism. A now-countless number of studies have concluded that a conviction—even a very old conviction—is a substantial barrier to employment.

Judge Dearie noted the “irony” of his petitioner’s case that “precisely because she has been so successful in turning her life around, she has not demonstrated ‘exceptional circumstances’ warranting expungement.”

Judge Dearie concludes his opinion by calling on all three branches to make it possible for federal offenders to “pay their debt to society,” Congress through legislation, the executive through pardons, and the courts through doctrinal change:

There are 65 million Americans living with criminal convictions and suffering adverse consequences. Against that backdrop, Ms. Stephenson’s predicament is not “exceptional”—they are uncomfortably commonplace. While she is not entitled to expungement of her record today given the state of the law, her petition raises the larger question of how we treat convictions and criminal records as a society. Basic values and notions of fairness stemming from our nation’s history animate the principle that individuals should be given an opportunity to start afresh or wipe the slate clean. This notion of forgiveness underlies the promise we so extend to individuals making their way through our criminal justice system: if you “pay your debt to society”—whether through a sentence or a fine—you are afforded a second chance in life.  Lately, this has been a promise left largely unfulfilled. Criminal records are remarkably public and permanent, and their effects are pernicious. A criminal sentence too often becomes “a lifetime of unemployment.” Doe, 2015 WL 2452613, at *5. It is time for a change.

That change could come from Congress, which has twice proposed but never enacted expungement legislation, putting the federal system woefully behind state criminal justice systems. Change could also come from the executive in the form of pardons, which today are only issued in a tiny fraction of cases and almost never years after a sentence is completed. See Leon Neyfakh, The Pardon Process Is Broken, Slate, Sept. 4, 2015.

The U.S. Attorney’s Office or the Department of Justice could change its position on expungement petitions, and only oppose such requests where the government has a compelling interest in the particular case. As a judiciary, it may be time to revisit the standard for granting expungement and consider, based on what we know now, whether expungement should be limited to only the most “exceptional” cases.

 

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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