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).

Read more

White House criticizes occupational licensing restrictions

Occupational licensing requirements pose more of a barrier to employment than ever before, and perhaps no group of the population has been more affected by these barriers than people with criminal histories.  About 25% of the country’s workforce is now employed in a field that requires a state occupational license, and many of these licenses take criminal history into account for eligibility or retention purposes.  As a result, a record number of people with criminal records — many of whom have devoted their lives to a particular occupation or profession — are finding it difficult or impossible to earn a living in their chosen field.

Now the White House is weighing in on the issue, saying that “Policymakers should refrain from categorically excluding individuals with criminal records, and instead should only exclude those individuals whose convictions are recent and relevant, and pose a legitimate threat to public safety.” The White House’s urging appears in a new report aimed at curtailing the “inconsistent, inefficient, and arbitrary” burdens that current occupational licensing systems can place on workers, employers, and consumers.” Read more

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.

Read more

DOJ argues federal court has no power to expunge

What relief is available for people with a federal conviction who cannot find or keep a job? Part of the answer may soon be found in two cases from Brooklyn that raise the question whether a federal judge has the power to expunge a conviction whose validity is conceded. In the first case, U.S. v. Jane Doe (Jane Doe I), the Justice Department has appealed Judge John Gleeson’s May 21 expungement order to the Second Circuit Court of Appeals. In the second case, also styled U.S. v. Jane Doe (Jane Doe II), Judge Gleeson asked the Department to brief the issue of his authority to expunge.  He also asked the government to advise whether he has authority to “enter a certificate of rehabilitation in lieu of expungement.”  The government has now delivered its answer, and it is “No” to both questions.

The government’s brief is fairly predictable.  On the expungement issue, it argues that federal courts have no “ancillary jurisdiction” to expunge the record of a lawful conviction, relying on the Supreme Court decision in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).  As to the court’s authority to issue a certificate of rehabilitation, the government appears to assume that Judge Gleeson was referring to one of the certificates provided for under New York law, and relies on cases holding that a federal court cannot grant relief under a state law.  One clue that this was not what Judge Gleeson had in mind might have been that neither of the New York certificates is called that (though they are considered evidence of rehabilitation), and that the only mention of a certificate of rehabilitation in federal law (Rule of Evidence 609(e)) is generic. Another clue is that no federal court that we know of has ever attempted to grant state relief to a federal offender (with the exception of a few assimilative crimes cases), indicating that the law on this issue is too clear to tempt even even the most creative jurist.

The petitioner’s brief is now due on October 5.  The expert’s brief is likely to be due a day or two afterwards. No date has yet been set for oral argument.

 

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.”