Federal expungement case gets curiouser and curiouser

July 29, 2015 CCRC Staff

Visitors to this site are familiar with the expungement order issued by Federal District Judge John Gleeson on May 21. See Jane Doe v. United States, now on appeal to the Second Circuit. A second Jane Doe, a codefendant of the first, applied for expungement on June 23, and on June 29 Judge Gleeson ordered the government to show cause on or before August 28 why her application should not be granted. A hearing has been scheduled for September 18.

Yesterday the Judge issued a new order directing the government to include in its briefing “its view as to whether I have authority to enter a certificate of rehabilitation in lieu of expungement, and if so, the appropriateness of entering such a certificate in this case.”

It is not clear exactly what Judge Gleeson might have in mind by a “certificate of rehabilitation,” since there is no specific authority in federal law for a court to grant relief so styled, whatever its legal effect, just as there is no specific authority for a federal court to expunge a conviction.

Responding to the first Jane Doe’s petition for relief, Judge Gleeson relied upon the court’s inherent authority to expunge her thirteen-year-old conviction “because of the undue hardship it has created for her in getting – and especially keeping – jobs.” He remarked that “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.”

It is possible that Judge Gleeson has in mind the authority New York State courts have, in cases where a first felony offender is sentenced to probation, to issue a “Certificate of Relief from Disabilities” (CRD), which lifts legal barriers in New York law and has a limited effect under the nondiscrimination provisions of Article 23A of New York’s Corrections Law. But since the second Jane Doe was sentenced to a 15-month prison term, she would not have been eligible for this relief even if sentenced by a New York court, but would have had to apply to the Parole Board for a Certificate of Good Conduct (which has much the same legal effect as a CRD).

As it is, both Jane Does are eligible, like other federal offenders residing or doing business in New York, for a state law certificate from New York’s parole board. However, we are unaware that a CRD or any other type of state relief has ever been granted by a federal court in New York. Indeed, we are unaware of any case in any State where a federal court has ordered relief from collateral consequences under a provision of state law. (If anyone knows of such a case, we welcome enlightenment.)

It is true that federal sentencing judges are routinely asked by the U.S. Pardon Attorney for their recommendations in pardon cases that appear meritorious. However, it is not clear whether either of Judge Gleeson’s Jane Does has applied for a presidential pardon. If they were to do so, the likelihood of their pardon applications being considered any time soon, at least in the ordinary course, is quite small.

We look forward to seeing the government’s brief when it is filed.