Expungement Is Denied, but Court Offers Novel Relief
While a federal judge declined to expunge a woman's fraud conviction, he devised his own certificate meant to prove her rehabilitation to employers, landlords and others.
Eastern District Judge John Gleeson said he could not provide Jane Doe with her sought-after remedy of expunging her 2002 conviction, but gave her a "lesser form of relief" through his issuance of a certificate of rehabilitation where he said he recommended Doe "for employment, housing, benefits and other opportunities as a full participant in society."
Though certificates of rehabilitation exist in New York and several other states and are generally meant to relieve certain licensing, employment and benefit barriers that attach to convictions, there is no statutory counterpart in the federal system. In Doe v. United States of America, 15-mc-1174, Gleeson said the certificate, also signed by the Eastern District's chief probation officer, memorialized his conclusions for Doe's future employers. "I hope they will give my careful consideration of Doe's current suitability for employment significant weight, and conclude that it far outweighs the effect of her aberrant criminal conduct all those years ago," Gleeson wrote in his March 7 decision, just days before he stepped down from the bench to join Debevoise & Plimpton. And if Doe's attorneys chose to seek a presidential pardon, "I believe the certificate will help her make a strong case." "The federal system has much to gain from adopting a certification system similar to those states," Gleeson wrote. The 32-page ruling is not Gleeson's first analysis of the jurisprudence surrounding expungement. Though the petitioner in the current matter was able to find intermittent nursing work and start her own cleaning business, Gleeson last year granted expungement to another woman whose job prospects were crippled following her conviction for a minor role in a fraud scheme. Gleeson said at the time that he "sentenced her to five years of probation supervision, not to a lifetime of unemployment" (NYLJ, June 3, 2015). Prosecutors in the Eastern District U.S. Attorney's Office are appealing the decision. The U.S. Court of Appeals for the Second Circuit is scheduled to hear arguments on April 7. Other judges have wrestled with expungement requests. For example, Gleeson's Eastern District colleague, Judge Raymond Dearie, said he regretted he could not erase the conviction of a woman who "turned her life around" and urged prosecutors, judges and Congress to re-think expungement laws (NYLJ, Oct. 15, 2015). In the current case before Gleeson, Doe was passenger in a staged car accident scheme. In 2002, a jury found her guilty of conspiring to commit and committing health care and mail fraud. Doe's adjusted income was less than $15,000 in the two years before the offense, according to her pre-sentence report. She was also raising two children by herself with $80 a week in child support from the father. Gleeson ultimately imposed an 11-month sentence and almost $7,500 in restitution. When Doe was released from prison in 2004, she went through periods of employment and unemployment in the nursing field. Due to the conviction, her state nursing license was suspended in 2006 for two years, with the second year stayed, as well as two years of probation. When the suspension ended, Doe went back to work. Gleeson noted that Doe applied unsuccessfully to a number of nursing agencies, some of which mentioned the conviction, but others did not. In 2014, Doe started her own house-cleaning business and managed to make some money while she applied to other nursing agencies. Doe first moved to expunge the conviction in 2008 and Gleeson denied the bid. In 2013, he denied her effort to vacate the conviction. Doe filed the instant bid last year, invoking Gleeson's prior expungement decision, which he had released approximately a month earlier.
"The government might have responded by engaging in an effort to help Doe seek employment," said Gleeson, noting how other U.S. Attorney's offices across the country were taking steps like hosting employment fairs and holding community re-entry forums.
But the prosecution instead opted to oppose, Gleeson said.
He invited attorney Margaret Colgate Love, co-author of "Collateral Consequences of a Criminal Conviction: Law, Policy and Practice" to submit an amicus brief addressing issues including whether he was authorized to enter a certificate of rehabilitation.
In the filing, Love, represented by Jones Day, said while there was no federal law permitting the issuance of a federal certificate of rehabilitation, there were "two mechanisms, each perhaps underappreciated but with deep historical roots, by which the court may recognize an individual's rehabilitation."
One was a so-called writ of audita querela, enabling the reopening of a judgment in "extraordinary circumstances" through the All Writs Act of 1789. The other was the recommendation of a clemency grant to the president.
In his ruling, Gleeson said there was "no reason to issue such a writ here because Doe has not requested that I vacate her judgment entirely, but rather that I delete the record of it."
He also waved off the prosecution's argument that he lacked the jurisdiction to hear the motion.
He noted the Second Circuit's expungement standard said it should be used only for "the unusual or extreme case" —a standard that "unfortunately" was not met here.
He said there were reasons apart from the conviction that Doe lost jobs or had been declined offers "including patient complaints and the usual ebb and flow of clientele."
Though acknowledging she "struggled considerably," Gleeson said he was not clear how expungement would significantly help her. Her conviction would still show up on her nursing license and in private criminal record databases, he noted.
Gleeson said he thought Doe might "have more luck if she applies for jobs outside of her chosen profession."
Nevertheless, Gleeson said he imposed sentences as a means of punishment and deterrence. With Doe's otherwise clean record, Gleeson said it seemed the sentence proved effective.
"There is no longer a need to deprive Doe of her liberty interests in the way collateral consequences imposed by the law have been doing. As her sentencing judge, I owe it not only to Doe, but to her family and community, to do my part to lift any remaining hardship on her."
As Gleeson discussed his reasoning for issuing his certificate, he noted most prospective employers lacked the time and resources to understand who Doe is and what weight they should afford her conviction.
"So I have done that for them," he said.
In an interview, Love praised the decision.
"To the extent this invites other federal courts to get into the forgiveness business, it will be a very positive development," she said.
Love, who served as the U.S. Pardon Attorney in the Justice Department from 1990 to 1997, said questions about the force of Gleeson's certificate were "uncharted waters."
Todd Geremia, Lawrence Rosenberg and Paul Lettow, partners at Jones Day, and Leigh Krahenbuhl, an associate, appeared on the amicus brief.
Mitchell Golub of Golub & Golub in Manhattan represented Doe and could not be reached for comment. Eastern District Assistant U.S. Attorney David Kessler appeared for the prosecution. Nellin McIntosh, a spokeswoman for the office, declined to comment.
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