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.

October 9, 2015

Old Writ Could Give Ex-Offenders a New Start

by Joe Palazzolo

A federal case in Brooklyn may offer a solution for some ex-offenders struggling to find work because of their criminal convictions.

Most states permit certain types criminal records to be expunged, sealed or otherwise concealed from public view. Some allow ex-offenders to seek certificates of rehabilitation that exempt them from felony-related sanctions such as those barring people with criminal records from obtaining professional licenses.

But in the federal system, which has nothing akin to expungement or a certificate program, convictions can mark people for life, compromising their prospects for jobs and housing, among other things.

Many believe such consequences are an appropriate deterrent. A growing number of policymakers, judges and law enforcement officials, however, question the wisdom of limiting job opportunities for ex-offenders, who are less likely to return to prison when they find stable employment, research shows.

Margaret C. Love, a former Justice Department pardon attorney, and a group of lawyers from Jones Day LLP have dusted off an 18th century law that they believe has a modern application for ex-offenders who have served their time but face obstacles related to their convictions.

Part of the 1789 All Writs Act, the writ of audita querela allows courts to relieve the consequences of an otherwise valid judgment. It was used by debtors against creditors in the nation’s early days, but federal and state courts have more recently recognized the writ’s usefulness in other cases, including when a criminal conviction “gives rise to a subsequent injustice,” the lawyers wrote in a brief filed Friday in federal district court in Brooklyn.

Ex-offenders could make a strong case for audita querela relief when a law or regulation strips them of a right to which they otherwise would be entitled, the brief said.

For instance, a conviction-based restriction that results in job loss could violate due process rights by depriving an ex-offender of a fundamental property interest. Losing the ability to possess a gun as a result of a conviction could violate the Second Amendment.

“In such a case, a person convicted of an applicable crime would have a legal or, technically, constitutional objection to the continued enforcement of the judgment, thereby meeting the requirements for audita querela relief,” the brief said.

Ex-offenders could also seek relief under the writ “where the totality of the circumstances make continued enforcement of the judgment, in whole or in part, unjust,” the lawyers wrote. Courts could grant their requests by vacating convictions or issuing orders lifting sanctions against ex-offenders.

The brief was filed at the invitation of U.S. District Judge John Gleeson in a case involving a woman convicted of health-care fraud who is seeking to have her record expunged. Judge Gleeson expunged the conviction of another defendant in the scheme earlier this year, in what legal experts said was the first instance of a federal judge erasing a criminal record on the grounds that it interfered with employment. The Justice Department is appealing his order in that case.

The woman in the latest case, identified as 56-year-old Jane Doe in court documents, drove a car in a staged collision and claimed to have received medical services, as part of a scheme to collect insurance money. She was sentenced in 2003 to 15 months in prison, and her nurse’s license was suspended for two years. Her criminal record has prevented her from maintaining employment, she said in her June petition.

The Justice Department disputed that federal judges can erase convictions for “equitable reasons,” such as difficulty finding work, and even if they could, her case wouldn’t merit it, prosecutors said in court documents. No federal appeals court has held that judges have the power to expunge valid convictions absent “extreme circumstances,” the department said.