Tag: Gleeson

“The Future of the President’s Pardon Power”

The Collateral Consequences Resource Center is pleased to announce a series of online panels on successive Tuesdays in September, starting on September 14, that will explore in depth the use of the pardon power by President Donald Trump, and how it both reflects recent trends in pardoning and is likely to influence pardoning in the future. The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power.  The second panel, on September 21, will consider whether Trump’s pardons may prompt much-needed reforms in sentencing law and practice.  The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters. This series is jointly organized by CCRC, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. The panels are based on the essays in Volume 33, Issue 5 of the Federal Sentencing Reporter. Margaret Love, executive director of CCRC, curated and introduced the FSR essays, and recruited participants for the panels. Register for each panel here.   PANEL 1: Donald Trump’s Theatre of Pardoning: What Did We Learn? September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School Amy Povah, founder, CAN-DO Justice through Clemency Kenneth Vogel, The New York Times  Moderator:  Margaret Love, executive director, Collateral Consequences Resource Center, former U.S. Pardon Attorney   PANEL 2: Supplementing the Pardon Power: Second Looks and Second Chances Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Jack Chin, Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education, University of California, Davis, Law School John Gleeson, attorney and former United States District Judge of the United States District Court for the Eastern District of New York Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit JaneAnne Murray, professor of practice, University of Minnesota Law School Moderator:  Carter Stewart, executive vice president, Andrew W. Mellon Foundation, and former U.S. Attorney for the Southern District of Ohio   PANEL 3: Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper? Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Rachel Barkow, Vice Dean and Charles Seligson Professor of Law, New York University School of Law Jeffrey Crouch, assistant professor of American politics, School of Public Affairs, American University Paul J. Larkin, Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation Margaret Love, executive director, Collateral Consequences Resource Center, former U.S. Pardon Attorney Moderator:  Douglas Berman, Newton D. Baker-Baker & Hostetler Chair in Law and executive director, Drug Enforcement and Policy Center   Read more

Federal judges challenge collateral consequences

Federal judges have begun speaking out about the burdens imposed by severe collateral consequences and the limited ability of courts to mitigate the resulting harm.  This is particularly true in the Eastern District of New York, where some judges have openly lamented the lack of statutory federal expungement authority and have used their opinions and orders to call upon the legislature to ensure that those with criminal records are given a fair shot at success.  Among the more vocal critics of collateral consequences is recently retired Judge John Gleeson, who last year took the extraordinary step of expunging one woman’s criminal record despite acknowledged uncertainty about his authority to do so.  In another case, Judge Gleeson crafted an alternative more transparent form of relief, a federal “certificate of rehabilitation.”  (You can find our extensive coverage of these cases here). In a new article titled “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” Nora Demleitner takes a look at how the criticisms of members of the federal bench may shape the framework in which second chance laws and policies are considered, both at the legislative and judicial level, and how they may or may not affect the prospect of significant reform. Demleitner argues that although these judicial challenges represent a significant change in practice, they do not represent a significant change in institutional thought.  By hewing closely to traditional normative values about who is and who is not worthy of a second chance (individuals with non-violent offenses, no prior or subsequent criminal history, and a strong work history), courts signal only the desire to expand second chance laws and policies to meet conventional, and perhaps outmoded, notions of fairness regarding crime and punishment. Demleitner suggests that we move toward an individualized and contextualized assessment of worthiness that is unconstrained by rigid categorical analyses.  At the same time, however, she seems to concede “the legal, economic, and social constraints that make [the defendants in these cases] exemplary role models rather than set the expectation for all persons with a criminal record.”   At the least, her approach seems inconsistent with mandatory collateral consequences, at least where there is no possibility of administrative waiver or relief.  Unfortunately, that is a discussion that is unlikely to take place as long as we cling to a limited binary set of characteristics to determine who deserves a second chance and who does not. The full abstract of the article, published in the New York Law Review Online, follows: Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically. These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen. Read more

Judge Gleeson to speak about collateral consequences

Capitalizing on the growing interest in the employment discrimination faced by people with a criminal record, Cornell University’s ILR School will host a program next month featuring Judge John Gleeson on “The Role of Courts in Managing Collateral Consequences.”  Details of the program, which will take place in Manhattan on September 29, are here.  Last year, Judge Gleeson expunged the conviction of a woman he had sentenced 13 years before, and later issued a “federal certificate of rehabilitation” to one of the woman’s codefendants. While the 2nd Circuit recently reversed Judge Gleeson’s expungement order, the government did not appeal his certificate order. Participating with Judge Gleeson on the Cornell program are New York Supreme Court Justice Matthew D’Emic, who recently presided over a mass certificate ceremony in Brooklyn; and Michael Pope, Director of Legal Services for Youth Represent, who last month won a significant victory for a woman whose shop-lifting conviction had resulted in her rejection as a school bus attendant in New York City.  Ted Potrikus, President and CEO of the Retail Council of New York State, and Margaret Love, Executive Director of the CCRC, will also participate.  Registration is now open for the program, which carries CLE credit. https://ccresourcecenter.org/wp-content/uploads/2016/08/New-Gleeson-flyer-8-25.pdf Read more

Federal expungement order reversed on appeal

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. In a final section of its brief opinion, the court stated that the “unfortunate consequences of Doe’s conviction compel us to offer a few additional observations.” First, our holding that the District Court had no authority to expunge the records of a valid conviction in this case says nothing about Congress’s ability to provide for jurisdiction in similar cases in the future.  As described above, Congress has done so in other contexts.  It might consider doing so again for certain offenders who, like Doe, want and deserve to have their criminal convictions expunged after a period of successful rehabilitation. In addition to encouraging Congress to act, the court noted the Attorney General’s recognition, even as the appeal was pending, of “the unfortunate lifelong toll that these convictions often impose on low‐level criminal offenders.” Too often, Americans who have paid their debt to society leave prison only to find that they continue to be punished for past mistakes.  They might discover that they are ineligible for student loans, putting an education out of reach.  They might struggle to get a driver’s license, making employment difficult to find and sustain.   Landlords might deny them housing because of their criminal records – an unfortunately common practice. They might even find that they are not allowed to vote based on misguided state laws that prevent returning citizens from taking part in civic life. . . . [T]oo often the way that our society treats Americans who have come into contact with the criminal justice system . . . turns too many terms of incarceration into what is effectively a life sentence. Roadmap to Reentry: The Justice Department’s Vision to Reduce Recidivism through Federal Reentry Reforms (Apr. 25, 2016). The court of appeals decision does not affect Judge Gleeson’s issuance last March of a “federal certificate of rehabilitation,” which the government did not appeal.  But it highlights the fact that a presidential pardon remains federal offenders’ only route to relief from collateral consequences, making President Obama’s recent promise to grant more pardons all the more attractive. Read more

“Virginians with a felony conviction can now vote, but getting a job is no easier”

Lincoln Caplan, formerly of the editorial staff of The New York Times and now on the faculty at Yale Law School, has written a thoughtful piece about collateral consequences for the New Yorker.  It points out why Governor McAuliffe’s order restoring the vote to Virginians with a criminal record doesn’t help them deal with the myriad of legal restrictions that deny them opportunities, or with what he calls “a relentless form of social stigma.”  He concludes that relief measures like expungement, which are based on concealing the fact of conviction, may be less effective for felony-level crimes than more transparent measures like pardon or certificates of rehabilitation.  He concludes that “Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice.” A featured piece by a well-regarded journalist in such a sophisticated venue may do a lot to bring the problem of collateral consequences to the attention of people in a position to do something about them.  We reprint portions of the article below. Voting rights are a prominent issue this year, so it is not surprising that attention turned to the political significance of the order, or that Republicans accused McAuliffe of enfranchising voters to strengthen Democrats’ position in the state. But voting rights are only one of many rights that are withheld from people who have had felony or other convictions. Virginia also imposes eight hundred and fifty-three other restrictions, known as collateral consequences, on people who have been convicted of a crime. For example, Virginia—and thirty-three other states—put up barriers when people who have been convicted apply for a license to work in one of many occupations, as a report issued last week by the National Employment Law Project explained. The state lets licensing agencies reject these applicants—to be cosmetologists, home inspectors, engineers, and other kinds of professionals—on the ground that they are generally unfit or unsuited. The agencies do not have to prove that a particular conviction is evidence of a person’s lack of fitness or suitability to do a specific job, and there is no easy way for an applicant to challenge a rejection. In the past generation, the scope and number of collateral consequences have dramatically increased. Every state and the federal government now imposes these restrictions, which prevent people convicted of felonies and misdemeanors from getting, among other things, jobs, housing, education, government contracts, bank loans, and public benefits. As retribution became the focus of criminal justice, rehabilitation fell away as a goal of the system. So did the idea that people who finish paying their debt to society—by completing their term in prison and their probation or parole, or whatever their penalty—have earned a fresh start. Collateral consequences are considered civil rather than criminal matters. They are described as regulations instead of punishments. But they can be harshly and repeatedly punitive, a relentless form of social stigma. American law once favored the concept of civil death—of stripping a felon of civil rights for an especially heinous crime like treason. The country came to spurn that idea in the early twentieth century, and it largely disappeared. But the pervasive and largely invisible restrictions of collateral consequences are similarly oppressive. They can amount to a new form of civil death. Caplan points out that In the age of mass incarceration, collateral consequences represent an enormous problem. In the past half-century, the likelihood that an American will be arrested by the age of twenty-three has climbed to about thirty per cent. The consensus is that sixty-five million to seventy million Americans now have criminal records. A former prisoner’s chances of successfully reëntering society depend heavily on his or her ability to get a job, find a place to live, and establish a stable life—and collateral consequences make all of these things difficult. Partly as a result, the United States has stunningly high levels of recidivism. Seventy-seven per cent of people released from state prisons in 2005 were arrested again within five years, fifty-five per cent were convicted after their arrest, and twenty-eight per cent were sent back to prison, according to a report released this year by the U.S. Sentencing Commission. Caplan notes that the Obama Administration’s embrace of measures like “ban the box” is focused on the role of collateral consequences in driving recidivism rates. But it is highly unlikely that legislators can be persuaded to drastically reduce the number of so-called civil restrictions on people who have been convicted. Instead, activists have been promoting two alternative solutions to this problem of collateral consequences, which Margaret Love, a lawyer in Washington, D.C., who is co-author of a treatise on these restrictions, calls the “forgetting” and “forgiveness” models. These, in short, would seal or expunge a criminal record, or use a pardon or a certificate of rehabilitation to show society’s forgiveness. He explores the difference between the forgiving and forgetting models of relief with a discussion of the “federal certificate of rehabilitation” issued by Judge John Gleeson in March to a woman whose conviction had “caused her disappointment time and time again”: Two days before he retired from the bench, in March, Judge John Gleeson of the Federal District Court in Brooklyn addressed the choice between these models and the problem of collateral consequences, in an opinion about the case of Jane Doe v. United States of America. Doe, a fifty-seven-year-old woman from Jamaica, is a legal permanent resident in the U.S. and has her nursing license. In 2000, her boyfriend persuaded her to take part in a staged car accident to scam an insurance company. She received no money for the crime. A jury found her guilty of conspiring to commit, and committing, health-care and mail fraud. Gleeson eventually sentenced her to spend eleven months in prison and to pay about seventy-four hundred dollars in restitution. After she was released from prison, in 2004, she was able to work again as a nurse for a couple of years. But in 2006, the New York State Office of Professional Discipline found her guilty of professional misconduct as a result of this offense, her first and only criminal conviction. Later that year, her nursing license was suspended for two years and she received two additional years of probation. From then until 2015, she constantly faced collateral consequences, and cycled in and out of employment. As Gleeson wrote in March, “Despite her persistence in trying to find employment in her chosen profession, Doe’s conviction has caused her disappointment time and time again.” The motion that brought Doe back to Gleeson’s courtroom was for him to expunge her criminal record. That would not help her, he decided, since the conviction would still appear on her nursing license and in private criminal-record databases. And federal law would not let him do what she asked for, because her situation, he said, is neither harsh nor unique. In other words, forgetting wasn’t an option. But he felt a duty to do something. He wrote, “There is no longer a need to deprive Doe of her liberty interests in the way collateral consequences imposed by the law have been doing. As her sentencing judge, I owe it not only to Doe, but to her family and community, to do my part to lift any remaining hardship on her.” Gleeson could “certify that Doe has been rehabilitated,” and he did. He invented a federal Certificate of Rehabilitation, modelled on similar ones that judges can grant in courts in fourteen states and Washington, D.C. He went on, “Most prospective employers do not have the time or resources to gain a comprehensive understanding of who Doe is, and then to figure out what weight, if any, her conviction should play in the hiring process. So I have done that for them. I have reviewed each page of Doe’s trial transcript, presentence report, probation reports, deposition transcript, and other documents she and the government provided to me for a holistic view of her character and competency today. I find that there is no relationship between Doe’s conviction and her fitness to be a nurse.” He embraced the “forgiveness” model, which, as he wrote, “is gaining favor in the reentry community for both functional and philosophical reasons.” Caplan’s final comments about the relative merits of forgiving and forgetting to mitigate the harsh effects of collateral consequences are worth careful consideration: Forgetting seems to work well for minor crimes, but in this age of vanishing privacy it will rarely work for serious ones, because there will likely be a record of them somewhere. Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice. On Doe’s certificate, Gleeson was explicit about the collateral consequences it should apply to, and the status it accords her: “I recommend her for employment, housing, benefits, and other opportunities as a full participant in society.”   Read more