Federal expungement order reversed on appeal

In an eagerly awaited decision, a panel of the Second Circuit Court of Appeals has ruled that federal courts have no authority to expunge the records of a valid conviction.  As Joe Palazzolo at the Wall Street Journal noted, this effectively “put an end to an experiment by a Brooklyn judge that drew attention to the challenges people with criminal records face trying to find and keep jobs.”  In reversing Judge John Gleeson’s May 2015 expungement order in the case of a woman he had sentenced more than a decade before, the court distinguished its precedent upholding a court’s power to expunge arrest records following dismissal of charges.  The panel pointed out that

a motion to expunge records of a valid conviction on equitable grounds will ordinarily be premised on events that are unrelated to the sentencing and that transpire long after the conviction itself.  For example, in this case the facts underlying the District Court’s sentencing were clearly independent of the facts developed in Doe’s motion filed years later.  Conversely, the District Court granted Doe’s motion based on facts and events (her repeated efforts to obtain employment) that transpired years after her sentencing and term of probation.

In a final section of its brief opinion, the court stated that the “unfortunate consequences of Doe’s conviction compel us to offer a few additional observations.”

First, our holding that the District Court had no authority to expunge the records of a valid conviction in this case says nothing about Congress’s ability to provide for jurisdiction in similar cases in the future.  As described above, Congress has done so in other contexts.  It might consider doing so again for certain offenders who, like Doe, want and deserve to have their criminal convictions expunged after a period of successful rehabilitation.

In addition to encouraging Congress to act, the court noted the Attorney General’s recognition, even as the appeal was pending, of “the unfortunate lifelong toll that these convictions often impose on low‐level criminal offenders.”

Too often, Americans who have paid their debt to society leave prison only to find that they continue to be punished for past mistakes.  They might discover that they are ineligible for student loans, putting an education out of reach.  They might struggle to get a driver’s license, making employment difficult to find and sustain.   Landlords might deny them housing because of their criminal records – an unfortunately common practice. They might even find that they are not allowed to vote based on misguided state laws that prevent returning citizens from taking part in civic life. . . .

[T]oo often the way that our society treats Americans who have come into contact with the criminal justice system . . . turns too many terms of incarceration into what is effectively a life sentence.

Roadmap to Reentry: The Justice Department’s Vision to Reduce Recidivism through Federal Reentry Reforms (Apr. 25, 2016).

The court of appeals decision does not affect Judge Gleeson’s issuance last March of a “federal certificate of rehabilitation,” which the government did not appeal.  But it highlights the fact that a presidential pardon remains federal offenders’ only route to relief from collateral consequences, making President Obama’s recent promise to grant more pardons all the more attractive.

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