Category: Relief

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in Doe v. United States, and requesting an opportunity to address the scope of the order in the event the appeal is withdrawn.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: 

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Federal judge’s extraordinary expungement order will be appealed

Joe Palazzolo over at the Wall Street Journal blog reports that the Justice Department will appeal Judge John Gleeson’s extraordinary May 28 expungement order in U.S. v. Doe, described on this site earlier this month.  We reprint Joe’s piece in full below, since it highlights the disconnect between the Justice Department’s avowed concern with reentry and its evident lack of interest in providing relief from collateral consequences to people with federal convictions.

The Justice Department spearheads the federal government’s efforts to help people convicted of crimes return to society after paying their dues, but a case in Brooklyn is putting its views to the test.

The U.S. Attorney’s Office for the Eastern District of New York signaled Friday that it will appeal a rare order by a federal judge expunging the fraud conviction of a health-care aide and mother of four who said her efforts to hold down a job have been sabotaged by her criminal record.

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Canadian travel restrictions based on criminal record

Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry.  This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada.

Were you convicted?

If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.”  Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible.

Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility.  A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act.

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Obama clemency process reportedly “more backlogged than it was before”

USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year.  More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action.  In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.

Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.

Federal judge expunges conviction to avoid collateral consequences

In what appears to be an unprecedented action (at least if it stands), a federal judge has expunged the concededly valid conviction of a woman he sentenced 13 years before, whose difficulties in finding and keeping employment evidently moved him to take extraordinary measures.  In Doe v. United States, Judge John Gleeson (EDNY) commented on the “excessive and counterproductive” employment consequences of old convictions:

Doe’s criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. Nearly two decades have passed since her minor, nonviolent offense. There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment.

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New Maryland law allows “shielding” of some misdemeanor convictions

Earlier this month, Maryland governor Larry Hogan signed the Second Chance Act of 2015, 2015 Md. Laws 313 (HB 244), which allows eligible persons to petition a court for “shielding” (or sealing) certain misdemeanor records.  This is the first time Maryland has authorized limits on public access to conviction records other than nuisance offenses and offenses that have been pardoned.

The new law, which goes into effect on October 1, is a significant step forward in the treatment of conviction records in the state.  However, its effect may not be as sweeping as many would like. Only a handful of misdemeanor offenses are eligible for relief, and records that have been generally shielded from public access remain available to a significant number of employers and licensing entities. We take a more detailed look at the new law below.

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50-state survey of relief from sex offender registration

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more

Leaked White House memos detail president’s pardon policy

USA Today has published a White House document detailing President Obama’s policy on granting clemency, including both sentence commutation and post-sentence pardons.  In a memorandum dated July 13, 2010 to the Acting Deputy Attorney General, White House Counsel Robert Bauer “convey[ed] the President’s views” on the exercise of his constitutional pardon power, affirming traditional standards but emphasizing that there are “certain offenses for which a pardon should very rarely, if ever, be granted absent truly exceptional circumstances.”  Among these were “large-scale drug trafficking” in which the applicant had “a significant role,” and financial fraud cases involving “substantial loss to the federal government or its programs.”

The memo affirmed the five-year eligibility waiting period for a pardon, overriding a 2001 policy of the Bush Administration (also published for the first time) that imposed an informal 10-year waiting period.  At the same time, it emphasized that the passage of additional time may strengthen an applicant’s case for pardon: Read more

Increase in Delaware pardons “driven by getting jobs”

imagesbluehenDelaware Governor Jack Markell has granted more than 1500 pardons in his six years in office, substantially more than any of his predecessors.  According  to articles by Chris Barrish and Jonathan Starkey in the Delaware News Journal, the “dramatic increase” in the number of people applying for pardon in Delaware has been “driven by getting jobs.”  In defending his record of generous pardoning, Governor Markell noted that the state had adopted 50 new background check requirements for employment in the past several years, and that people with convictions need a governor’s pardon to enable them to overcome the stigma of conviction to obtain employment and stay on the road to rehabilitation.  The two articles are here and here.

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“Preventing Background Screeners from Reporting Expunged Criminal Cases”

www.povertylawIn an article published this week by the Shriver Center, Preventing Background Screeners from Reporting Expunged Criminal Cases, Sharon Dietrich offers helpful advice for advocates on to how to combat the problem posed by the reporting of expunged and sealed criminal records by private commercial background screening services. Her advice is based partly on her own organization’s participation in litigation under the federal Fair Credit Reporting Act (“FCRA”) against one of the country’s larger background screeners — an experience that she recounts in detail.

Dietrich identifies the problem of improper private reporting of expunged records as one that “threatens to undermine the whole strategy of broadening expungement as a remedy for the harm of collateral consequences.” She describes the underlying issue as follows:

 [T]he commercial background-screening industry, which runs the lion’s share of the background checks obtained by employers and landlords, sometimes reports those expunged cases long after they have been removed from the public record. Companies in the background-screening industry typically maintain their own privately held databases of criminal cases from which they generate background checks. When updating their data from public sources (often state courts), these screeners often do not use methods to determine whether cases that were reported by their sources have been removed (i.e., expunged or sealed), and they continue to report them.

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