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.”

Book review: “The Eternal Criminal Record”

Nobody disputes that an enormous number of Americans have a criminal record.  For people with a criminal past, a segment of the population that in some cases faces a laundry list of social and economic challenges, these records define – and limit – their ability to reintegrate into the community.  This is a complex policy that has not received a fraction of the attention it deserves.

James Jacobs’ new book The Eternal Criminal Record (Harvard University Press, 2015) digs deeply into the issue with a nuanced analysis of how this system works.  Importantly, the book provides a step-by-step navigation though the process of how and when records are created, how they are shared for and, eventually, what these data can be used for.  What results is the most authoritative picture of how the pieces of the administrative universe of criminal history data fit together.

While criminal records can, and most often do, including information on past arrests, convictions and punishments, changes in the use and ownership of these files has changed the landscape.  These modifications are not necessarily all bad – for example, computerization and standardization have made instantaneous checks and intrajurisdiction data sharing possible – but they create significant challenges.  Some criminal data are part of the public domain, others are now owned by private companies.  Modernization cannot eliminate the creation and replication of errors- and these mistakes have meaningful consequences.

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Access to Individual Criminal History Information in India

 

India, like the U.S., is a federal political system comprised of states. In both countries, the states have primary authority over creation, disclosure, use and collateral consequences of criminal records, albeit within a basic national framework. Police and courts both create and maintain criminal records required to carry out investigatory and adjudicatory functions. However, unlike in the U.S., Indian court records are not systematically available to the public and law enforcement agencies are generally prohibited from disclosing individual criminal history information for non-criminal justice purposes. There are no private information companies engaged in selling criminal background records to employers, landlords, volunteer organizations, and curious individuals.

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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.