Tag: expungement

President declares U.S. a “nation of second chances” but issues no pardons

In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website.  But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship.  Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams.  Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office. The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant.  But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.” As exemplified by the case of Sala Udin described in Isikoff’s article, deserving pardon applicants have seen their petitions languish for years in the Office of the Pardon Attorney. These days pardon investigations are not progressing past the intake stage, and it is very hard to find out what the hold-up is.  It is tempting to fault the Justice Department for the glacial pace of pardoning, but in truth it is the President’s agenda that controls. A presidential pardon is the only relief from collateral consequences available to those convicted of federal offenses.  Expungement is not authorized by any federal statute, and most federal courts have held that they have no inherent authority to issue this kind of relief.  A more definitive answer to that question may come with the government’s appeal of Judge John Gleeson’s recent expungement order. But until that legal question is settled, and legislation either enacted or found unnecessary, we must hope that the President will expand his view of “second chances” beyond the prison gates to the communities where those who are burdened by a criminal record live and work.   Read more

New federal expungement filing raises stakes for DOJ

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. One issue that will at some point have to be resolved is what effect the expungement order will have in situations where employment restrictions are imposed by state or federal law, as they frequently are in the health professions for which both Jane Does are trained.  The question whether an expungement (unlike a pardon) will avoid statutory bars to employment is frequently unsettled even where that relief is specifically authorized. It is worth noting that both Jane Does have been repeatedly offered employment and only later terminated after their convictions were discovered during a background check. The fact that no questions were asked at least by some employers before the two women were allowed to start work suggests that the ban-the-box policy recently put in place by Mayor DeBlasio may have a somewhat limited effect, at least where health care jobs are concerned.  The brief accompanying Jane Doe II’s petition points out that her conviction has nothing to do with her performance as a nurse, but the “substantial relationship” standard incorporated into New York’s nondiscrimination law does not appear to have deterred the employers who repeatedly terminated her. Finally, it will be interesting to see if Judge Gleeson engages in as detailed and thorough an analysis of the facts underlying this second petition as he did with the first.  If expungement petitions are now to become routine in the Eastern District of New York, it seems important to find an efficient way of dealing with them.   * The second Jane Doe was re-sentenced in 2012 to 11 months in prison, long after her release, perhaps to avoid her conviction being grounds for mandatory deportation. Read more

Dissecting the REDEEM Act

The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance. The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process. This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved.  Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. I. Adult offenses A. Eligibility With the exception of waiting periods, the same eligibility standards apply to both conviction and non-conviction records. Eligible offenses Sealing is generally available for “covered nonviolent crimes,” a category that excludes many (though not all) crimes involving physical force, most sex offenses, and many crimes against minors.  Crimes of violence that are ineligible for sealing are defined at 18 U.S.C. § 16: The term “crime of violence” means– (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Given the uncertain contours of this definition, it will often be unclear whether a specific offense constitutes an ineligible crime of violence under § 16. The definition, which is incorporated into a number of federal statutes, has already generated considerable litigation. Much more can be expected if the Act becomes law without closing off the potential for argument over the eligibility status of specific offenses. Ineligible sex offenses are listed at 42 U.S.C. § 16911, and also include a number of non-sexual crimes against minors. Section 16911 offenses are more clearly defined than crimes of violence, though ambiguity will still exist in some cases since many of the offenses listed in § 16911 are defined by conduct and without reference to any particular federal criminal statute or to elements of the offense. Examples include crimes against a minor “involving” false imprisonment or use of a minor in a sexual performance, descriptions that could refer to several specific federal crimes. Prior convictions Sealing is unavailable to anyone convicted of an ineligible felony offense at any time and to anyone convicted of more than two eligible felonies (including those that have been sealed). Interestingly, non-federal “nonviolent crimes” are not considered for eligibility purposes, though what constitutes such an offense is not clear since the language used does not track that used to define eligible offenses (“covered nonviolent offense”). Multiple convictions related to the same act or committed at the same time are considered a single conviction for eligibility purposes.  Additionally, unless the court determines that treating the convictions as a single offense is not in the public interest, up to three convictions may be treated as one if they relate to the same indictment, information, or complaint; were all committed within a three month period; or were addiction-related. Waiting Period Conviction records may only be sealed after a person has fulfilled every requirement of his or her sentence. If sentenced to prison or supervision for an eligible offense, a person may not petition until 1 year after release from prison or supervision, whichever is later. No waiting period applies to non-conviction records. B. Procedure and burdens The same procedures and standards apply to both conviction and non-conviction records. A petition for sealing may be filed in any U.S. district court.  Upon filing, the court must notify the U.S. attorney that prosecuted the offense and any person the petitioner seeks to have testify in support of the petition. A hearing on the petition must be held within 6 months unless the government agrees to a waiver of hearing, in which case a determination on the petition must be made by the court within six months. For the the court to deny an otherwise valid petition, the government must show that: (I)(aa) the interest of public knowledge and safety; and (bb) the legitimate interest, if any, of the Government in maintaining the accessibility of the protected information, including any potential impact of sealing the protected information on Federal licensure, permit, or employment restrictions” outweighs the petitioner’s interest regarding: (II)(aa) the conduct and demonstrated desire of the petitioner to be rehabilitated and positively contribute to the community; and (bb) the interest of the petitioner in having the protected information sealed, including the harm of the protected information to the ability of the petitioner to secure and maintain employment. In making this determination, the court may consider all evidence and testimony offered by the petitioner, their witnesses, and the prosecutor. However, the court may not consider an arrest, prosecution, or conviction for non-federal non-violent or non-sexual offenses. If a petition for sealing is denied, a person must wait two years before petitioning again to seal records of the same offense. C. Effect A sealed record is rendered unavailable to public examination, except by court order. [1]. A sealed “offense and any arrest, criminal proceeding, conviction, or sentence relating to the offense shall be treated as if it never occurred,” except as otherwise specified in the Act. Records that are sealed must be labeled as such and physically closed.  The court must seal its own paper and electronic copies of the record and must send copies of the sealing order to “each entity or person known to the court that possesses a record containing protected information that relates to the offense, including each law enforcement agency and public or public or private correctional or detention facility.”  Those entities must then seal the record and submit written certification of sealing to the court, which then notifies the petitioner. It is a misdemeanor to “intentionally make or attempt to make an unauthorized disclosure of any protected information from a record that has been sealed,” though significant exceptions apply. [2] Sealed records may be disclosed for the purpose of conducting background checks for law enforcement employment and for employment that a federal agency has designated as a “national security position” or “high-risk public trust position.” This means that records will be available to a great number of federal agencies, government contractors, and other employers like nuclear power plants, and others required to access classified information. Sealed records may also be disclosed to the military for “the purpose of vetting an enlistment or commission, or with regard to any member of the Armed Forces.” Law enforcement agencies and the Attorney General may access sealed records for prosecutorial/investigatory purposes, and prosecutors may disclose records pertaining to potential witnesses in federal or state criminal or delinquency proceedings. Additionally, the Attorney General (who is required to maintain a non-public record of all records sealed under the act) may disclose a sealed record upon determining “that disclosure is in the interest of justice, public safety, or national security.” The Act provides no standards governing the AG’s use of this authority — something that will hopefully be addressed in committee. A person whose record has been sealed is immune from civil or criminal liability for perjury, false swearing, false statements with respect to that record, except before entities to which disclosure is authorized by the act. Otherwise, sealing confers no special rights and appears not to have a restorative effect on any rights lost as a result of conviction or arrest.  Though the Act does provide that an offense or proceedings that is sealed “shall be treated as if it never occurred,” it is not clear how a person can enforce that right against third parties like employers or licensing boards seeking to use the fact of an arrest or conviction in a hiring or licensing decision. To underscore that point, there are no provisions in the Act that address employment and licensing discrimination against persons with sealed records. There are also no provisions addressing the status of records maintained by commercial criminal record providers. [3] It is worth emphasizing that the Act does not make clear what if any effect a sealing order has on the myriad collateral consequences arising under state and federal law.  Hopefully this and other uncertainties about the legal effect of a sealing order can be addressed as the bill goes through the committee process.      II. Juvenile offenses Records of eligible juvenile delinquency adjudications are automatically sealed after a waiting period (or earlier, upon petition) and may be expunged upon petition (automatically in some instances). Juvenile records for eligible offenses that did do not result in a delinquency finding are automatically expunged. Juvenile offenses eligible for sealing and expugement are those that do not qualify as violent crimes under 42 U.S.C. § 5603(27), or as sex offenses under 42 U.S.C. § 16911. The definition of “violent crimes” under § 5603(27) is much narrower and clearer than the definition that applies to adult offenses. the term “violent crime” means- (A) murder or nonnegligent manslaughter, forcible rape, or robbery, or (B) aggravated assault committed with the use of a firearm   Ineligible juvenile sex offenses are defined in the same manner as adult offenses. A. Sealing Records of eligible delinquency adjudications are automatically sealed by court order three years after completion of sentence if a person has no subsequent convictions during the waiting period and no charges are pending against the person. Unlike adult sealing, there is no limit on the number of juvenile adjudications that may be sealed, nor on sealing following conviction for an ineligible offense. A delinquency record may be sealed earlier than three years upon petition. Procedures for early sealing petitions are the same as those applicable to adult petitions, with the following exceptions: Instead of balancing interests, the court determines whether to grant a petition by considering a number of factors including the nature of the offense, age of the petitioner at commission, subsequent criminal involvement, adverse consequences that may face the petitioner if sealing is not granted, and evidence offered by the prosecutor. No burdens are specified, and there is no prohibition on considering non-federal charges, convictions, or adjudications. The effect of juvenile sealing (both automatic and early) is identical to that of adult record sealing. B. Expungement In addition to sealing, juveniles may also have eligible records expunged. Expungment has the same effect as sealing, but with additional protections. Expunged records must be physically destroyed by the courts and each entity or person in possession of the record, and there are no exceptions that allow for disclosure of expunged records for any purpose. The courts, law enforcement, and any agency that provided treatment or rehabilitation services to the juvenile subject to court order must respond to any inquiry about the existence of an expunged record in the negative, and a person cannot be required to disclose the existence of their own expunged record. Expungement of juvenile records is automatic[4] in some instances, and discretionary in others. Records of delinquency adjudications for crimes committed by a person younger than 15 are automatically expunged upon turning 18. Records of arrests and proceedings resulting in dismissal or a “not delinquent” findings are also automatically expunged. While expungement of “not delinquent” records is required at disposition, no time-frame is specified for dismissal records. A person found delinquent for a crime committed after turning 15 may petition for expungement in the same manner in which they would petition for early sealing. The same procedures and considerations applicable to early sealing apply, except that there is no requirement that a person complete any ordered detention or supervision prior to filing an expungement petition.   You can find the full text of the REDEEM Act here, and Senator Booker’s press release describing the Act’s intent here.  Check back soon for a more detailed look at some of the specific issues raised by the Act.     [1] The act does not specify the basis for issuing such an order. [2] The Act does not specifically define what disclosures are “unauthorized.” While disclosure of a record held by any entity that received a copy of the sealing order from the court would presumably qualify, whether disclosure by an entity that did not receive such an order qualifies is unclear (though one would expect that some notice of sealing in some form would be required for prosecution of unlawful disclosure). It is also unclear whether an entity in possession of a sealed record can confirm that a record exists without revealing the actual contents of the record.  Entities required to expunge a juvenile record under a different section of the Act are explicitly required to deny the existence of an expunged record, but there is no similar provision that applies to sealed records. [3] Though the court can apparently order sealing by any entity known to possess a a record, the fact that identical records are maintained by numerous and often unknowable commercial criminal information providers means the Act will likely be ineffectual at completely purging records from their databases. [4]  Though the law describes expungement in some instances as “automatic,” and states that such “expungement shall not require any action by the person whose records are to be expunged,” expungement is not effective by operation of law.  For crimes committed under the age of 15, and where charges were dismissed, the Attorney General is obligated to file a motion for expungement in the district court, and the court is required to grant the motion. In proceedings where a juvenile is found not delinquent, the court is required to issue an expungement order concurrently with a not delinquent finding.     Read more

DOJ on the fence about appealing federal judge’s expungement order

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:  The Office continues to discuss internally whether to pursue an appeal of the Court’s Orders and, given the date (nearly thirty days from entry), the government has filed the notice to preserve its appellate rights. In addition, the government has been consulting with counsel to the Federal Bureau of Investigation concerning proposed modifications to the Court’s May 21 and 22 Orders that will both effectuate the Court’s intention of precluding the petitioner’s prospective employers from learning of her health care fraud conviction and will allow the government to pursue legitimate law enforcement objectives, including the arrest and prosecution of Jean Maxon Lucien and Frantz Mevs, two of the petitioner’s codefendants who absconded following their arrests in the underlying case, United States v. Lucien, 00-CR-1274 (JG), and who remain at large. Because the government has filed a Notice of Appeal to preserve its rights in this case, however, the Court may currently be divested of jurisdiction to modify its May 21 and 22 Orders. Accordingly, the government respectfully requests that, if the Office or the Department of Justice ultimately determines that an appeal is not warranted in this case, the Court afford the government the opportunity to address the scope of the Court’s ordersand the implementation of them as currently written, which would substantially burden the government and have unintended consequences in related criminal proceedings. Here is the text of the court’s June 24 order: The government’s application in its letter dated June 23, 2015 [DE 15], requesting an opportunity to address the scope of the order and its implementation in the event the appeal is withdrawn, is granted. Assuming the correctness of the government’s assertion that I lack subject matter jurisdiction (even concerning the form of the remedial order), I respectfully suggest that the government bring any concerns with regard to the order to the Court’s attention, even while the appeal is pending. At the very least, it would afford this Court the opportunity to provide the Court of Appeals its view regarding the issues raised. If the government is willing to work out a solution that will “preclud[e] the petitioner’s prospective employers from learning of her health care fraud conviction” as long as it will not impede its prosecution of Ms. Doe’s fugitive co-defendants, this will be very good news to the many people with federal convictions who have had similar difficulty in getting and keeping employment but whose criminal cases are entirely resolved.    Read more

Federal judge’s extraordinary expungement order will be appealed

Joe Palazzolo over at the Wall Street Journal blog reports that the Justice Department will appeal Judge John Gleeson’s extraordinary May 28 expungement order in U.S. v. Doe, described on this site earlier this month.  We reprint Joe’s piece in full below, since it highlights the disconnect between the Justice Department’s avowed concern with reentry and its evident lack of interest in providing relief from collateral consequences to people with federal convictions. The Justice Department spearheads the federal government’s efforts to help people convicted of crimes return to society after paying their dues, but a case in Brooklyn is putting its views to the test. The U.S. Attorney’s Office for the Eastern District of New York signaled Friday that it will appeal a rare order by a federal judge expunging the fraud conviction of a health-care aide and mother of four who said her efforts to hold down a job have been sabotaged by her criminal record. In his May order, U.S. District Judge John Gleeson nodded to “a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive.” He cited a 2011 letter by then Attorney General Eric Holder pressing state attorneys general to reassess state laws that limit the job prospects of ex-offenders. That same year, Mr. Holder established a council of 20 government agencies whose goal is “to remove federal barriers to successful reentry, so that motivated individuals — who have served their time and paid their debts — are able to compete for a job, attain stable housing, support their children and their families, and contribute to their communities.” “If the government is trying to look out for people in these situations, why take this case of all cases?” said Brooklyn lawyer Bernard H. Udell, who is representing the woman whose conviction Judge Gleeson expunged. A spokeswoman at the Justice Department’s headquarters in Washington, D.C., declined to comment. A spokeswoman for the U.S. attorney’s office in Brooklyn had no immediate comment. In 2002, Judge Gleeson sentenced the woman, who is identified in court documents by the pseudonym Jane Doe, to five years of probation for feigning injury in a staged car crash and falsely claiming to have received medical services as part of a scheme to collect insurance money. She landed several jobs as a health-care aide since her conviction but lost them after her record came to light in background checks, according to her petition. Judge Gleeson cited several factors in support of his decision to expunge her record, including the 17 years that have elapsed since she committed a crime, the trouble she has had keeping jobs, her age (mid-50s) and the nonviolent nature of her crime. The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past. The brief said expungement should be used only in extreme circumstances, citing cases involving illegal arrests and police misconduct. The appeal places the case in front of the Manhattan-based Second U.S. Circuit Court of Appeals. Read more