Why we need a federal expungement law

This article originally appeared at TalkPoverty.org under the title “New Ruling Highlights Why We Need the REDEEM Act” 

On May 21, U.S. District Judge John Gleeson ordered the expungement of the 13-year-old federal fraud conviction of “Jane Doe,” a Brooklyn home health aide. His decision received national attention for being unprecedented in the federal courts, which have no explicit authority conferred on them by Congress to expunge or seal federal criminal cases. Encouraging though it is, Judge Gleeson’s decision is most important for its illustration of the need for Congress to enact such a sealing remedy, as provided for in the bipartisan REDEEM Act (S. 675).

As my colleague Rebecca Vallas and I explained in a recent Center for American Progress report, having a criminal record is a major cause of poverty, and cleaning up a criminal record is one of the most powerful tools for overcoming the barriers associated with it. The states have recognized the power of this policy alternative, with 23 states having expanded their record-clearing laws between 2009 and 2014, as documented by the Vera Institute.

In contrast, there is virtually no statutory authority to clear records of federal court cases. Indeed, even though nearly every state permits arrests not leading to conviction to be cleared, there is no similar authority for federal cases. Even a person who is acquitted in a federal court has no explicit right to seal that case.

Jane Doe was desperate enough that she forged ahead with an expungement petition, even though it was the longest of long-shots. She is a Haitian immigrant who in 1997 was struggling to raise four children on a net monthly income from her home health aide job that was exceeded by her monthly rent alone. She participated in a staged accident as part of an automobile insurance fraud scheme which, had it been successful, would have paid her $2,500. Instead, she was found guilty of a federal charge of insurance fraud. She was sentenced to five years of probation, ten months of home detention, and a restitution order of $46,701 (toward which she faithfully paid $25 monthly, no matter how bad her financial position in later years). But in the eight years since her probation ended in 2007, Jane was fired from home health care jobs a half-dozen times after her background check. As a result, she has been unemployed most of the time.

In considering Ms. Doe’s petition, Judge Gleeson had to determine whether he had the authority to expunge a federal criminal case. In the absence of a federal law explicitly permitting expungement, he looked at whether federal courts have “ancillary jurisdiction” for that purpose. He concluded that of the nation’s twelve federal circuit courts of appeal, five may permit expungement, while five explicitly do not (with apparently no ruling in the other two). Even though he serves in one of the five circuits that may permit such a ruling, Judge Gleeson acknowledged that he was “acutely aware that ‘courts have rarely granted motions to expunge arrest records, let alone conviction records.’”

Judge Gleeson found “extreme circumstances” warranting expungement of Jane Doe’s case. The factors he pointed to for justification of his ruling included Jane’s otherwise clean record, the 17 years since the offense, the “dramatic” adverse impact on her ability to work, and her role as a minor participant in a nonviolent case.

But here’s the thing: While the impact of the federal conviction on Jane might be “extreme,” it is not unusual in the least. At the Philadelphia legal aid program where I work, we received more than 900 new requests for help last year alone by people whose criminal records were preventing them from working. A great many of these people also had old, nonviolent cases that cost them jobs and leave their families in poverty.

For instance, consider my following clients who have been involved in federal cases:

  • JT was convicted of sale of heroin in 1985, after a bad decision to try to sell drugs to provide for her children quickly ended when she sold to an undercover cop. She learned her lesson, served five years’ probation, and hasn’t been arrested since. Now 57, JT has been prevented from working with troubled children and from serving as a home care worker because of the 30-year-old case.
  • AA also was convicted of a single drug case in 1994. She too served five years’ probation and has avoided trouble ever since. She too has been threatened with loss of employment in a school because of her 20-year-old conviction.
  • In 1997, PV was convicted by a federal jury of harboring and concealing a person from arrest (she was accused of not turning over her common law husband to police). The judge overturned the verdict after the trial and acquitted her. But her case also remains available to the public and adds to her difficulties in getting work at age 64, despite 23 years in a very responsible position in a university until she was laid off.

Because the circuit court in Philadelphia has ruled that our judges have no authority to expunge criminal cases, I cannot file an expungement petition for these three women.

Fortunately, the REDEEM Act is a vehicle for change. Introduced by Senators Rand Paul (R-KY) and Corey Booker (D-NY), it would permit all three of my clients – and hundreds of thousands more – to seek to seal their records. The bill is not perfect. It limits sealing to nonviolent cases, including nonviolent arrests. All cases that have not resulted in conviction should be permitted to be sealed. But enactment of the REDEEM Act would be a very important step forward.

Judge Gleeson concluded, “[Jane Doe’s] case highlights the need to take a fresh look at policies that shut people out from the social, economic and educational opportunities they desperately need in order to reenter society successfully.” Amen to that. Let’s pass the REDEEM Act and provide the federal expungement remedy that is so desperately needed by people across the country like Jane Doe.

Sharon Dietrich

Sharon Dietrich is the Litigation Director of Community Legal Services, Inc., a legal aid program serving the low income population of Philadelphia. Her work includes litigation, policy advocacy, and individual representation, and she specializes in employment law, especially criminal record barriers.

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