Tag: expungement

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. In its brief in the court of appeals in Jane Doe I, the government argues that federal courts have no inherent power to expunge criminal records, relying on the Supreme Court’s decision in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994).  Moreover, apart from jurisdictional objections, the government urges that the “extraordinary” circumstances warranting expungement arise only where a conviction is “unconstitutional, illegal, or obtained through government misconduct.”  In this case, the government claims, the district court abused its discretion in ordering expungement of a valid conviction “based solely upon actual or threatened adverse employment actions.” But just the other day the President said that “This is a country that believes in second chances.  And right now we’ve got millions of people who aren’t getting it.” He also emphasized that our justice system should ensure that people who have been convicted of a crime can “recover and reenter society with gainful employment and the ability to be part of their children’s lives and to be citizens.” This message evidently has not yet found its way to the Justice Department, which does not seemed interested in helping people deal with “actual or threatened employment actions.” If the government’s arguments prevail, it will mean that the only relief from collateral consequences available for this Jane Doe (and for most federal offenders) is a presidential pardon, an increasingly rare occurrence under this President.  It has recently been argued that one of the primary reasons for the atrophy of the pardon power in recent years is the Justice Department’s failure to make more favorable recommendations to the president in pardon cases.  The President himself appears interested only in granting clemency to prisoners and not to people like Ms. Doe. If the appellee in Jane Doe I requests the full three-plus months allowed under Second Circuit rules to respond, the case will not likely be resolved until well into 2016. A similar expungement petition is pending before Judge Alan Burns in the Southern District of California.  After reviewing the unsettled caselaw on federal expungement, Judge Burns referred the petition to the Federal Defenders of San Diego, stating that The Court is sympathetic to Ms. Ramos’ circumstances, and wonders whether they may qualify as “extraordinary” under emerging case law in this circuit and others. The Court refers the attached motion to Federal Defenders of San Diego, and requests that counsel for Federal Defenders communicate with Ms. Ramos, review the relevant case law, and pursue Ms. Ramos’s motion to expunge her conviction if counsel determines that the motion is reasonably supported and is legally authorized.   Read more

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). Expungement schemes in states other than Tennessee have an even more limited effect on public access to criminal records.  For example, expunged convictions must be reported to certain employers in Kansas and Louisiana. Perhaps the most extreme example of expungement not meaning what the term suggests is the comprehensive relief scheme enacted in Indiana in 2013, described in detail in a post on this site some months ago.  “Expungement” under Indiana law does not involve any limitation on public access at all, though nonconviction and misdemeanor records may be “sealed” after they have been “expunged.” Conversely, California’s law authorizing set- aside of certain minor convictions is popularly known as “expungement” even though it involves no limitations on access at all. Michigan’s set-aside law has a similar mistaken identity. As evidenced by the chart on this site, state laws authorizing “expungement” have in recent years been riddled with exceptions, including for public employments or licenses that authorize a background check.  A subsequent conviction may result in lifting whatever restrictions on public access are imposed.  Even the proposed federal REDEEM Act contains numerous exceptions that would allow many employers and others to gain access to “sealed” records. The point is that the terms “expungement” and “sealing” (or “erasure” in Connecticut, and “shielding” under a new Maryland law) are not legal constructs that are uniformly defined or understood, and there are almost as many variations on their functional effect as there are states.  Even juvenile records, where the concept of expungement was pioneered in the 1940s, remain in the public domain far more frequently than in the past. Older forms of judicial relief like set-aside or vacatur, which were extended to valid convictions by the Model Penal Code in the 1960s specifically to restore rights, and to guilty pleas under deferred adjudication schemes in the 1970s specifically to avoid their loss, are considerably clearer and more uniform in legal effect from state to state. As the focus of criminal law reform begins to shift from mass incarceration to mass conviction, it will become ever more important to develop forms of relief from collateral consequences that are clear and effective.  It is not clear that “expungement” or “sealing” laws premised on limiting public access to records will be the most effective approach to restoring rights and status. 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.   Read more

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. Read more

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.” It is not clear exactly what Judge Gleeson might have in mind by a “certificate of rehabilitation,” since there is no specific authority in federal law for a court to grant relief so styled, whatever its legal effect, just as there is no specific authority for a federal court to expunge a conviction. Responding to the first Jane Doe’s petition for relief, Judge Gleeson relied upon the court’s inherent authority to expunge her thirteen-year-old conviction “because of the undue hardship it has created for her in getting – and especially keeping – jobs.”  He remarked that “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.” It is possible that Judge Gleeson has in mind the authority New York State courts have, in cases where a first felony offender is sentenced to probation, to issue a “Certificate of Relief from Disabilities” (CRD), which lifts legal barriers in New York law and has a limited effect under the nondiscrimination provisions of Article 23A of New York’s Corrections Law. But since the second Jane Doe was sentenced to a 15-month prison term, she would not have been eligible for this relief even if sentenced by a New York court, but would have had to apply to the Parole Board for a Certificate of Good Conduct (which has much the same legal effect as a CRD). As it is, both Jane Does are eligible, like other federal offenders residing or doing business in New York, for a state law certificate from New York’s parole board.  However, we are unaware that a CRD or any other type of state relief has ever been granted by a federal court in New York.  Indeed, we are unaware of any case in any State where a federal court has ordered relief from collateral consequences under a provision of state law. (If anyone knows of such a case, we welcome enlightenment.) It is true that federal sentencing judges are routinely asked by the U.S. Pardon Attorney for their recommendations in pardon cases that appear meritorious.  However, it is not clear whether either of Judge Gleeson’s Jane Does has applied for a presidential pardon.  If they were to do so, the likelihood of their pardon applications being considered any time soon, at least in the ordinary course, is quite small. We look forward to seeing the government’s brief when it is filed. Read more