Author Archives: CCRC Staff

“Old Writ Could Give Ex-Offenders a New Start”

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.

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After prison, a lifetime of discrimination

The problem of mass incarceration was highlighted by the Pope’s visit last week to a Philadelphia jail, and by an HBO Special that aired earlier this week on the President’s visit last summer to a federal prison.  But the public has not yet had an occasion to focus on the broader and deeper problem of mass conviction that has consigned an entire generation of African American men to second class citizenship, and their communities to continued poverty and alienation.  The mere fact of a criminal record has placed a Mark of Cain on millions of Americans who never spent a day behind bars.

In this morning’s New York Times columnist David Brooks points out that the growth in state prison systems is driven by the sheer number of people prosecuted rather than sentence length, and he faults prosecutors for charging twice as many arrestees as in the past. But if it is true, as Brooks argues, that most people sent to prison nowadays spend about the same amount of time there as they did thirty years ago, the true crisis in our criminal justice system is represented by the lifetime of social marginalization and discrimination that follows them upon their release.

In New York, Governor Cuomo has taken important steps toward dealing with the problem of over-prosecution that looms large behind that of over-incarceration. It is time for elected leaders in other states to take similar steps, and time for President Obama to address the problem of collateral consequences for those with a federal conviction.  For example, in his conversations with federal inmates aired on HBO he spoke admiringly of ban-the-box programs.  It would be fitting if he implemented such a policy in the employment and contracting for which his Administration is responsible.  He might also consider pardoning deserving individuals,or supporting alternative relief mechanisms through the courts.  Hopefully in his final year he will turn his attention in that direction.

New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.”

Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct.

Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.”

The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety.

While DOJ appeals his expungement order, Judge Gleeson’s other expungement case goes forward

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.

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The many faces of expungement in America

An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically.  In “Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement,“ Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.”  She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet.

But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned.  For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions.  See Tenn. Code Ann. § 40-32-101(b)(1).  Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3).

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Slate asks why presidents are granting less clemency; Justice answers

Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.”  The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?”  It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department.  In response to Slate’s invitation, Justice had the following comments on Love’s proposal:

The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.

These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors.  They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power.

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Should DOJ be gatekeeper of president’s pardon power?

Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power.  The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President.  The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here.  Here is its abstract:

The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.

It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.

This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”

Amicus invited in federal expungement case

For those following developments in the federal expungement case currently pending before Judge John Gleeson in the Eastern District of New York, Jane Doe v. United States (Jane Doe II), the following order was entered by the court on August 6:

ORDER: Margaret Love, a nationally-recognized authority on collateral consequences and co-author of the treatise Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2013), is respectfully invited to submit an amicus brief addressing the issues raised in my July 28, 2015 Order (i.e., the authority of the court to enter a certificate of rehabilitation and the appropriateness of doing so in this case) as well as any other matters that may be relevant to the adjudication of defendant’s motion.

The government’s brief is due on August 28, and petitioner’s brief is due September 11.  Argument is scheduled for September 18.  Meanwhile, no briefing schedule has yet been set in the appeal of Judge Gleeson’s May 21 expungement order in the first Jane Doe case.

Federal expungement case gets curiouser and curiouser

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.”

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Why should expungement be limited to “nonviolent” crimes? Dissecting the REDEEM Act (II)

The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984.  As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet.  But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.

Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing.  The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.

But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates.  If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief.  The good news is that the necessary fix is a simple one:  rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.

We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent.  Indeed, a wag has described them as catnip for the litigious.

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