Tag: Gleeson

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

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

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