Tag: palazzolo

“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

Insurance companies undermine fair hiring efforts

An investigation by the Wall Street Journal reveals the little-known role that insurance companies play in shaping employer policies on hiring people with a criminal record.  Joe Palazzolo reports in “Criminal Records Haunt Hiring Initiative” that the “unseen hand of commercial insurers” frustrates efforts by some employers to implement fair hiring policies, and gives others an excuse for maintaining broad prohibitions on hiring convicted individuals.  “An employee is typically excluded from standard insurance policy against fraud, theft, embezzlement and other crimes—known as a fidelity bond—as soon as the employer discovers that he or she has committed a dishonest act, whether recently or in the past.” The extent of the problem is illustrated by the story of Louis Henry, an Alabama man who lost a sales-management position at a medical-technology company after one day on the job, when a background check revealed a dated conviction for misreporting the status of a loan on the books of a bank where he worked.   “A May 1 letter from the employer, reviewed by The Wall Street Journal, said Mr. Henry’s record placed the company in violation of its insurance policies.” While working at a community bank in Childersburg, Ala., in the 1990s, Mr. Henry reported in a regulatory filing that one of the bank’s loans was current when, in fact, it was 30 days past due. Mr. Henry said he had no relationship with the borrower but pleaded guilty to avoid legal costs, even though he knew that plea would lead to his being banned from the banking industry. Financial institutions are largely prohibited by federal law from hiring employees with convictions for crimes of dishonesty, absent a waiver by the Federal Deposit Insurance Corporation. But Mr. Henry says he didn’t know the conviction would dog him in other industries, too. “When do you quit paying for a mistake?” said Mr. Henry, who is 55 years old. “There’s got to be some sort of statute of limitations.” Insurers appear unfazed by the growing body of research that challenges the notion that ex-offenders are an indefinite liability to employers: “I think insurance companies would probably agree with that research, but what they would not do is change a policy form that has been in existence for over 70 years and has had virtually everything in it litigated,” said Theodore M. Pappas, president of the McLaughlin Co., a Rockville, Md.-based insurance agency. The investigation documents the wide range of responses on the part of insurance executives to the public policy conundrum created by the conflict between second chance policies and longstanding liability practices.  One executive, whose firm works with the Federal Bonding Program, noted that insurers may grant waivers, agreeing to cover employees with long-ago or low-level offenses, like shoplifting. “I think that a lot of times the insurance and the bond questions are used as an excuse not to hire an ex-offender,” he said. Another believes that fidelity insurance has “evolved hugely” since the early 2000s, when any theft or fraud conviction in an employee’s background would have canceled coverage: “Now, a theft conviction for which the amount stolen was less than $1,000 doesn’t automatically exclude an employee from coverage. Some employers negotiate a higher threshold—say $25,000 or less—by paying a higher premium.” Some employers are being advised by their lawyers that categorical refusals to hire people with a criminal record could violate federal employment-discrimination laws: A company policy that says “‘We don’t hire felons’ is pretty much like saying, ‘Sue me,’” said Jonathan A. Segal, a partner at Duane Morris LLP, who represents employers. “And ‘the insurer made me do it’ doesn’t work.” Some employers have figured out a way around insurer limits to pursue a fair employment policy they endorse: B.J. Patterson, chief executive and owner of Pacific Mountain Logistics LLC in Ontario, Calif., said six employees on his staff have criminal records and are barred under his liability-insurance policy from working in the warehouse that receives imports. “Some of my best employees are what I call my second-chance guys and gals,” Mr. Patterson noted. “I think it’s a lot cheaper to give them a job than to keep building more prisons.” But many insurance companies don’t seem to have gotten the memo: Shirley Patrick, a senior account manager at iLink Business Management, a Hasperia, Calif.-based staffing company, said her insurance through American Zurich Insurance Company won’t cover workers with a felony conviction. “We’ve got so many unemployed people in the state of California. Do I have to make exceptions for Jim when I might be able to talk to Joe and he’s qualified and I don’t have to mess with these issues?” Ms. Patrick said. “I don’t need baggage.” Robyn Ziegler, a spokeswoman for the American Zurich Insurance Company, a subsidiary of Zurich Insurance Group Ltd., said the insurer doesn’t identify customers but that “most crimes policies do not cover employees with a known prior felony record.” Coverage may be reinstated, however, based on an employee’s “individual circumstances,” she said.       Read more