Tag: Gleeson

Judge Gleeson stepping down from the bench

The New York Daily News reports that Federal District Judge John Gleeson is stepping down from the bench to practice law. Judge Gleeson may be best known to the public for his prosecution of mob boss John Gotti more than two decades ago, but while on the bench he has been a champion for sentencing reform, criticizing long mandatory sentences and coercive prosecutorial tactics.  More recently he has stepped into the debate over the punitive impact of collateral consequences, expunging the record of a woman he had sentenced 13 years before. The article notes that Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago. The government has appealed Judge Gleeson’s expungement order, and CCRC recently filed an amicus brief in the Second Circuit in the case of U.S. v. Jane Doe. Look for more in this space on Judge Gleeson’s resignation. Read more

Another federal expungement case from Brooklyn – is this the beginning of a trend?

On October 8, a former chief judge of the Eastern District of New York held that he was “constrained by controlling precedent” to deny the expungement petition of a woman who feared that her 23-year-old fraud conviction would prevent her from obtaining a nurse’s license.  See Stephenson v. United States, No. 10-MC-712.  Judge Raymond Dearie declined to find the “extreme circumstances” warranting expungement under Second Circuit precedent, noting that the petitioner before him was fully employed and that her aspiration to become a nurse was realistic, in light of the protection afforded her by New York’s nondiscrimination laws.  He proposed that his own willingness to certify her rehabilitation could help satisfy the “good moral character” standard for a nursing license. (Could this be the sort of “certificate of rehabilitation” contemplated by Judge John Gleeson in his second Jane Doe expungement case?  If so, it would seem to require no specific statutory authority for him to issue it to an individual he sentenced, no matter how long ago.) Judge Dearie contrasted the case before him with the one in which Judge Gleeson ordered expungement in May, where the petitioner’s criminal record was having “a dramatic adverse impact on her ability to work,” citing Jane Doe I at *5.   The government has appealed Judge Gleeson’s expungement order. At the same time, Judge Dearie stressed his agreement with Judge Gleeson — and disagreement with prevailing caselaw — that economic hardship or negative employment consequences may warrant expungement. Much has changed, however, in the four decades since the Second Circuit first wrote that “extreme circumstances” must be present to warrant expungement. For one, there is now a great deal of solid evidence establishing that a criminal conviction often is a significant obstacle to employment, in some situations even creating the dire financial circumstances that, in turn, are strongly linked with recidivism. A now-countless number of studies have concluded that a conviction—even a very old conviction—is a substantial barrier to employment. Judge Dearie noted the “irony” of his petitioner’s case that “precisely because she has been so successful in turning her life around, she has not demonstrated ‘exceptional circumstances’ warranting expungement.” Judge Dearie concludes his opinion by calling on all three branches to make it possible for federal offenders to “pay their debt to society,” Congress through legislation, the executive through pardons, and the courts through doctrinal change: There are 65 million Americans living with criminal convictions and suffering adverse consequences. Against that backdrop, Ms. Stephenson’s predicament is not “exceptional”—they are uncomfortably commonplace. While she is not entitled to expungement of her record today given the state of the law, her petition raises the larger question of how we treat convictions and criminal records as a society. Basic values and notions of fairness stemming from our nation’s history animate the principle that individuals should be given an opportunity to start afresh or wipe the slate clean. This notion of forgiveness underlies the promise we so extend to individuals making their way through our criminal justice system: if you “pay your debt to society”—whether through a sentence or a fine—you are afforded a second chance in life.  Lately, this has been a promise left largely unfulfilled. Criminal records are remarkably public and permanent, and their effects are pernicious. A criminal sentence too often becomes “a lifetime of unemployment.” Doe, 2015 WL 2452613, at *5. It is time for a change. That change could come from Congress, which has twice proposed but never enacted expungement legislation, putting the federal system woefully behind state criminal justice systems. Change could also come from the executive in the form of pardons, which today are only issued in a tiny fraction of cases and almost never years after a sentence is completed. See Leon Neyfakh, The Pardon Process Is Broken, Slate, Sept. 4, 2015. The U.S. Attorney’s Office or the Department of Justice could change its position on expungement petitions, and only oppose such requests where the government has a compelling interest in the particular case. As a judiciary, it may be time to revisit the standard for granting expungement and consider, based on what we know now, whether expungement should be limited to only the most “exceptional” cases.   Read more

“Old Writ Could Give Ex-Offenders a New Start”

Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following.  Argument in Jane Doe II is now scheduled for October 26.  (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.)  The brief begins like this: This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency. The blog post describing the brief is reprinted in full after the jump. October 9, 2015 Old Writ Could Give Ex-Offenders a New Start by Joe Palazzolo A federal case in Brooklyn may offer a solution for some ex-offenders struggling to find work because of their criminal convictions. Most states permit certain types criminal records to be expunged, sealed or otherwise concealed from public view. Some allow ex-offenders to seek certificates of rehabilitation that exempt them from felony-related sanctions such as those barring people with criminal records from obtaining professional licenses. But in the federal system, which has nothing akin to expungement or a certificate program, convictions can mark people for life, compromising their prospects for jobs and housing, among other things. Many believe such consequences are an appropriate deterrent. A growing number of policymakers, judges and law enforcement officials, however, question the wisdom of limiting job opportunities for ex-offenders, who are less likely to return to prison when they find stable employment, research shows. Margaret C. Love, a former Justice Department pardon attorney, and a group of lawyers from Jones Day LLP have dusted off an 18th century law that they believe has a modern application for ex-offenders who have served their time but face obstacles related to their convictions. Part of the 1789 All Writs Act, the writ of audita querela allows courts to relieve the consequences of an otherwise valid judgment. It was used by debtors against creditors in the nation’s early days, but federal and state courts have more recently recognized the writ’s usefulness in other cases, including when a criminal conviction “gives rise to a subsequent injustice,” the lawyers wrote in a brief filed Friday in federal district court in Brooklyn. Ex-offenders could make a strong case for audita querela relief when a law or regulation strips them of a right to which they otherwise would be entitled, the brief said. For instance, a conviction-based restriction that results in job loss could violate due process rights by depriving an ex-offender of a fundamental property interest. Losing the ability to possess a gun as a result of a conviction could violate the Second Amendment. “In such a case, a person convicted of an applicable crime would have a legal or, technically, constitutional objection to the continued enforcement of the judgment, thereby meeting the requirements for audita querela relief,” the brief said. Ex-offenders could also seek relief under the writ “where the totality of the circumstances make continued enforcement of the judgment, in whole or in part, unjust,” the lawyers wrote. Courts could grant their requests by vacating convictions or issuing orders lifting sanctions against ex-offenders. The brief was filed at the invitation of U.S. District Judge John Gleeson in a case involving a woman convicted of health-care fraud who is seeking to have her record expunged. Judge Gleeson expunged the conviction of another defendant in the scheme earlier this year, in what legal experts said was the first instance of a federal judge erasing a criminal record on the grounds that it interfered with employment. The Justice Department is appealing his order in that case. The woman in the latest case, identified as 56-year-old Jane Doe in court documents, drove a car in a staged collision and claimed to have received medical services, as part of a scheme to collect insurance money. She was sentenced in 2003 to 15 months in prison, and her nurse’s license was suspended for two years. Her criminal record has prevented her from maintaining employment, she said in her June petition. The Justice Department disputed that federal judges can erase convictions for “equitable reasons,” such as difficulty finding work, and even if they could, her case wouldn’t merit it, prosecutors said in court documents. No federal appeals court has held that judges have the power to expunge valid convictions absent “extreme circumstances,” the department said. Read more

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

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