Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations. At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.
The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them. It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”). Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants. Read more
A federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel.
Respecting the IML passport identifier provision, the court pointed out that
the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b).
Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status. Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).
The New York Law Journal published an article over the weekend about the “novel relief” provided by the federal certificate of rehabilitation
issued by former Judge John Gleeson on March 7, just days before he stepped down from the bench. A reproduction of the certificate reveals its official appearance, complete with court seal and signatures of Judge Gleeson and the Chief U.S. Probation Officer.
The government has until April 7 to appeal – the very day its appeal of Judge Gleeson’s expungement order in his first Jane Doe case will be argued in the Second Circuit. The jurisdictional issues presented by the certificate order may be similar, if only because the certificate has some effect under state law. See N.Y. Correct. Law §§ 703(7), 752, both cited in Judge Gleeson’s opinion. It is likely that others similarly situated will apply for similar relief.
In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before. See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II). The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement. Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case. (Jane Doe I has been calendared for argument on April 7.) The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities. It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”
Joe Palazzolo at the Wall Street Journal blog noted that
More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . .
There is no equivalent federal certificate. So Judge Gleeson invented his own.
In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016). The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.
A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country. On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies. The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.” The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.
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.
Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following. Argument in Jane Doe II is now scheduled for October 26. (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.) The brief begins like this:
This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.
The blog post describing the brief is reprinted in full after the jump.
The Justice Department has decided to pursue its appeal of Judge John Gleeson’s May 21 order expunging the conviction of a woman who could not keep a job because of her criminal record. Its brief in U.S. v. Doe (Jane Doe I) can be accessed here.
Meanwhile, briefing is underway in Judge Gleeson’s second expungement case (Jane Doe II), in which he has also asked the parties and a “policy expert” to advise him on his authority to issue a “certificate of rehabilitation.” Judge Gleeson commented to the New York Times on the general problem of collateral consequences:
“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”
Petitioner’s brief in Jane Doe II is due on October 5, the brief of the “policy expert” is due on October 8, and argument has been scheduled for October 15. The government’s brief is here, and briefs of petitioner and amicus will be posted here when filed.