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.
New York’s venerable certificate of relief scheme, which aims to mitigate the adverse collateral effects of criminal conviction, has served as a blueprint for certificate laws recently adopted in many other states. But are New York’s certificates actually effective at restoring rights and status? That is a question addressed in two new scholarly articles, both of which find that New York’s certificates are frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.
Governor Cuomo recently directed reforms in the process for obtaining certificates in response to a report concluding that it has “historically been burdensome and slow.” These articles should be useful in that effort.
Both articles use interviews and anecdotal evidence to shed light on how certificate schemes operate in practice, providing insight into how government officials (including judges and probation officers), employers and convicted individuals interact with the laws (or fail to) in the real world. The increasing popularity of such well-intentioned laws represents an encouraging shift in legislative attitudes about second chances; but, as the articles make clear, they are only as good as their real-world application, which is more limited and less effective than many suppose.
At long last I have released the 2015 edition of my online guide to relief from a criminal conviction in North Carolina. This free guide, available here from the UNC School of Government, covers the various forms of relief available under North Carolina law, including expunctions, certificates of relief, petitions to restore firearm rights and terminate sex offender registration obligations, and other procedures. It includes changes made by the North Carolina General Assembly through the end of its 2015 legislative session.
This edition of the guide is longer, reflecting the greater attention given by the North Carolina General Assembly to this area of law in recent years. North Carolina law now authorizes certificates of relief, patterned after the Uniform Collateral Consequences of Conviction Act. North Carolina also has expanded the opportunities to obtain an expunction.
Expunctions are now available for older nonviolent felony convictions. Recent statutory changes prohibit public and private employers and educational institutions from inquiring about expunged charges and convictions and, further, require government agencies to advise applicants that they have the right not to disclose expunged information. People still must meet precise statutory criteria to be eligible for relief, however. Although North Carolina courts granted approximately 13,000 expunctions of dismissals in fiscal year 2013–14, they granted about 700 expunctions of convictions and other matters. See 2014 Expunctions Report [NCAOC and DOJ Joint Report Pursuant to G.S. § 15A-160] (Sept. 1, 2014) (providing data on expunctions from 2008 to 2014).
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.
Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.”
Governor Cuomo’s 12 executive actions include: adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute; adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct.
Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.”
The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety.
What relief is available for people with a federal conviction who cannot find or keep a job? Part of the answer may soon be found in two cases from Brooklyn that raise the question whether a federal judge has the power to expunge a conviction whose validity is conceded. In the first case, U.S. v. Jane Doe (Jane Doe I), the Justice Department has appealed Judge John Gleeson’s May 21 expungement order to the Second Circuit Court of Appeals. In the second case, also styled U.S. v. Jane Doe (Jane Doe II), Judge Gleeson asked the Department to brief the issue of his authority to expunge. He also asked the government to advise whether he has authority to “enter a certificate of rehabilitation in lieu of expungement.” The government has now delivered its answer, and it is “No” to both questions.
The government’s brief is fairly predictable. On the expungement issue, it argues that federal courts have no “ancillary jurisdiction” to expunge the record of a lawful conviction, relying on the Supreme Court decision in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994). As to the court’s authority to issue a certificate of rehabilitation, the government appears to assume that Judge Gleeson was referring to one of the certificates provided for under New York law, and relies on cases holding that a federal court cannot grant relief under a state law. One clue that this was not what Judge Gleeson had in mind might have been that neither of the New York certificates is called that (though they are considered evidence of rehabilitation), and that the only mention of a certificate of rehabilitation in federal law (Rule of Evidence 609(e)) is generic. Another clue is that no federal court that we know of has ever attempted to grant state relief to a federal offender (with the exception of a few assimilative crimes cases), indicating that the law on this issue is too clear to tempt even even the most creative jurist.
The petitioner’s brief is now due on October 5. The expert’s brief is likely to be due a day or two afterwards. No date has yet been set for oral argument.
For those following developments in the federal expungement case currently pending before Judge John Gleeson in the Eastern District of New York, Jane Doe v. United States (Jane Doe II), the following order was entered by the court on August 6:
ORDER: Margaret Love, a nationally-recognized authority on collateral consequences and co-author of the treatise Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2013), is respectfully invited to submit an amicus brief addressing the issues raised in my July 28, 2015 Order (i.e., the authority of the court to enter a certificate of rehabilitation and the appropriateness of doing so in this case) as well as any other matters that may be relevant to the adjudication of defendant’s motion.
The government’s brief is due on August 28, and petitioner’s brief is due September 11. Argument is scheduled for September 18. Meanwhile, no briefing schedule has yet been set in the appeal of Judge Gleeson’s May 21 expungement order in the first Jane Doe case.