*Update 2: On November 25, 2019, the Supreme Court denied the petition.
*Update (11/1/2019): On September 23, 2019, the Supreme Court asked Iowa to respond to the cert petition. Iowa’s response is here. The petitioner’s reply is here.
On September 9, we filed an amicus brief at the U.S. Supreme Court urging the justices to review and reverse a decision out of Iowa that upholds wealth-based barriers to expungement. We were joined by the Institute for Justice, a libertarian public interest law firm. At issue in the case is an Iowa law that bars a person from obtaining expungement of a dismissed or acquitted case if they owe any court fees in the case. We point out the inequity of denying access to expungement based on socio-economic status: “The irony of Iowa’s expungement law could not be clearer: a law that removes a hurdle to employment and economic security cannot be invoked by indigent individuals until outstanding costs and fees are paid to the state, effectively defeating the very purpose of providing expungement relief in the first place.”
This case arises from Jone Doe’s request in 2018 to expunge her dismissed criminal case from 2009. But she still owes $550.38 for her court-appointed attorney, which she cannot afford to pay. Doe argued the requirement to pay outstanding fees before obtaining expungement violates her equal protection rights under the constitution. She pointed out that had she been able to hire a private attorney, she would be eligible for expungement, whether or not she owed attorney fees. The lower court denied the request, finding that Doe “was made aware of reimbursing attorney fees and that expungement could not occur until all fees and assessed costs were paid.” The Iowa Supreme Court, by a 4-3 vote, upheld the requirement, finding the state has a legitimate purpose “to encourage payment of court debt.” On petition to the Supreme Court, we urge the Court to “grant certiorari and hold that one’s inability to pay court fees may not restrict access to statutorily-created expungement rights.”
We were represented by Ethan P. Fallon and Thomas M. Bondy of Orrick, Herrington, & Sutcliffe LLP, and appreciate their work on this case. The full amicus brief is available here.
The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984. As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet. But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.
Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing. The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.
But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates. If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief. The good news is that the necessary fix is a simple one: rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.
We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent. Indeed, a wag has described them as catnip for the litigious.