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.

In its brief in the court of appeals in Jane Doe I, the government argues that federal courts have no inherent power to expunge criminal records, relying on the Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994).  Moreover, apart from jurisdictional objections, the government urges that the “extraordinary” circumstances warranting expungement arise only where a conviction is “unconstitutional, illegal, or obtained through government misconduct.”  In this case, the government claims, the district court abused its discretion in ordering expungement of a valid conviction “based solely upon actual or threatened adverse employment actions.”

But just the other day the President said that “This is a country that believes in second chances.  And right now we’ve got millions of people who aren’t getting it.” He also emphasized that our justice system should ensure that people who have been convicted of a crime can “recover and reenter society with gainful employment and the ability to be part of their children’s lives and to be citizens.” This message evidently has not yet found its way to the Justice Department, which does not seemed interested in helping people deal with “actual or threatened employment actions.”

If the government’s arguments prevail, it will mean that the only relief from collateral consequences available for this Jane Doe (and for most federal offenders) is a presidential pardon, an increasingly rare occurrence under this President.  It has recently been argued that one of the primary reasons for the atrophy of the pardon power in recent years is the Justice Department’s failure to make more favorable recommendations to the president in pardon cases.  The President himself appears interested only in granting clemency to prisoners and not to people like Ms. Doe.

If the appellee in Jane Doe I requests the full three-plus months allowed under Second Circuit rules to respond, the case will not likely be resolved until well into 2016.

A similar expungement petition is pending before Judge Alan Burns in the Southern District of California.  After reviewing the unsettled caselaw on federal expungement, Judge Burns referred the petition to the Federal Defenders of San Diego, stating that

The Court is sympathetic to Ms. Ramos’ circumstances, and wonders whether they may qualify as “extraordinary” under emerging case law in this circuit and others.

The Court refers the attached motion to Federal Defenders of San Diego, and requests that counsel for Federal Defenders communicate with Ms. Ramos, review the relevant case law, and pursue Ms. Ramos’s motion to expunge her conviction if counsel determines that the motion is reasonably supported and is legally authorized.