This is the title of a paper by Professor Judith McMullen of Marquette University Law School. Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.” She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”
CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article. It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges. Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers. A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration. There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.
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.
The New York Law Journal published an article over the weekend about the “novel relief” provided by the federal certificate of rehabilitation
issued by former Judge John Gleeson on March 7, just days before he stepped down from the bench. A reproduction of the certificate reveals its official appearance, complete with court seal and signatures of Judge Gleeson and the Chief U.S. Probation Officer.
The government has until April 7 to appeal – the very day its appeal of Judge Gleeson’s expungement order in his first Jane Doe case will be argued in the Second Circuit. The jurisdictional issues presented by the certificate order may be similar, if only because the certificate has some effect under state law. See N.Y. Correct. Law §§ 703(7), 752, both cited in Judge Gleeson’s opinion. It is likely that others similarly situated will apply for similar relief.
In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before. See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II). The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement. Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case. (Jane Doe I has been calendared for argument on April 7.) The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities. It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”
Joe Palazzolo at the Wall Street Journal blog noted that
More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . .
There is no equivalent federal certificate. So Judge Gleeson invented his own.
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.
Not surprisingly, in the wake of U.S. District Judge John Gleeson’s extraordinary May 21 expungement order in Doe v. U.S., another petition asking for the same relief has now been filed with Judge Gleeson. Also not surprisingly, since this new petition was filed by one of Ms. Doe’s co-defendants, the underlying facts in this second petition are similar. The second Jane Doe was a more culpable participant in the insurance fraud scheme, and was sentenced to 15 months in prison instead of probation.* However, she has remained law-abiding since her release more than a decade ago, and like the first Jane Doe she has had a very difficult time getting or keeping a job because of her conviction. It seems unlikely that the difference in the second Jane Doe’s role in the offense will make a difference in the way the court disposes of her petition.
Judge Gleeson has asked the government to show cause why the new petition should not be granted, which should guarantee that it gets attention at the highest levels of the Justice Department. Argument has been set for September 18. If there were any doubt about whether the government will prosecute its appeal of the first expungement order, it has probably been dispelled now that the proverbial floodgates appear to be opening. Potential amici should start lining up counsel.
On June 23, the U.S. Attorney wrote to Judge Gleeson informing him that the government had not yet finally decided whether to appeal his May 21 expungement order in Doe v. United States, and requesting an opportunity to address the scope of the order in the event the appeal is withdrawn. The government’s letter, reproduced in its entirety below, indicates that the government has been discussing with the FBI how the order might be modified to “effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction” while also allowing the government “to pursue legitimate law enforcement objectives.” Those objectives appear to relate to the arrest and prosecution of two of Ms. Doe’s codefendants who remain in fugitive status after more than a decade. On June 24, in an order granting the government’s request, Judge Gleeson suggested that the government bring any concerns about the scope of the order to the court’s attention even while the appeal is pending.
Here is the text of the government’s June 23 letter:
In what appears to be an unprecedented action (at least if it stands), a federal judge has expunged the concededly valid conviction of a woman he sentenced 13 years before, whose difficulties in finding and keeping employment evidently moved him to take extraordinary measures. In Doe v. United States, Judge John Gleeson (EDNY) commented on the “excessive and counterproductive” employment consequences of old convictions:
Doe’s criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. Nearly two decades have passed since her minor, nonviolent offense. There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment.