May 28, 2015
US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
Regular readers are likely to recall the remarkable series of opinions issued by US District Judge John Gleeson in recent years in which the judge has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. Now I have learned, thanks to this great new Margy Love post at the Collateral Consequences Resource Center, that Judge Gleeson's latest opinion examines the collateral workplace consequences of an old federal fraud conviction in the course of ordering expungement. Here is how the must-read opinion in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here), starts and ends:
Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year old fraud conviction because of the undue hardship it has created for her in getting — and especially keeping — jobs. Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it’s hard to blame those employers for using the conviction as a proxy for Doe’s unsuitability.
However, even if one believes, as I do, that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference, there will nevertheless be cases in which all reasonable employers would conclude that the conviction is no longer a meaningful consideration in determining suitability for employment if only they had the time and the resources to conduct a thorough investigation of the applicant or employee.
I have conducted such an investigation, and this is one of those cases. In addition to presiding over the trial in Doe’s case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision. I conclude that the public’s interest in Doe being an employed, contributing member of society so far outweighs its interest in her conviction being a matter of public record that the motion is granted and her conviction is expunged....
Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the “only” ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called “ban the box” practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent. There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.
Accordingly, Doe’s application for an order expunging her conviction is granted. It is hereby ordered that the government’s arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government’s databases, electronic filing systems, and public record. Doe’s real name is to be removed from any official index or public record. It is further ordered that the records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe’s conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.
It will be interesting to see how the Justice Department responds to this decision, and also how the Second Circuit will consider this matter if (when?) the feds appeal.
May 28, 2015 at 03:00 PM | Permalink
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Thank you doug, for this timely post. Last week I spoke with a former police officer who had a 13 year old misdemeanor assault on a female charge on his record. He has had tremendous problems getting a job and had to put a lease in his wife's name so he could find a place to live. Whoever said, (Kissinger?) that a man is never separated from his luggage hit the nail on the head.
Posted by: bruce cunningham | May 28, 2015 7:21:27 PM
I would also wonder just how effective such relief is. Mostly because I would expect that most such background checks are done through private databases rather than by direct query to the government. And there is no way the government could require that such a private party remove a record. Even in the case of a innocence finding I would expect that it would be up to the private agency to decide whether to actually remove the record, let alone an expungement order like this.
Posted by: Soronel Haetir | May 28, 2015 9:14:13 PM
These anecdotal examples, are not helpful. You must crush the employment lawyer, forcing employers to fire people with criminal records. The lawyer is the reason for the failure of decarceration.
Posted by: Supremacy Claus | May 28, 2015 10:08:40 PM
In response to Soronel Haetir's comment, if Doe was denied employment based on a background check provided by a third party, Doe would have claims under the Fair Credit Reporting Act (FCRA) against both the employer and the third party. Consumer reporting agencies (the background check providers) are obligated to maintain accurate records. Further, an employer using a background check as a reason to deny employment is required to inform the job applicant prior to making a decision and providing the job applicant with a copy of the background check. The job applicant has 3-5 days to inform the employer and background check company of the error (listing the expunged conviction). The background check company is required to ensure its records are accurate and up-to-date. If an employer denies employment based on an inaccurate check, the job applicant has multiple claims against the employer and the background check company under the FCRA - including statutory damages and the award of attorney fees.
Posted by: Roland Behm | May 29, 2015 12:12:29 PM
Except the record is in fact accurate, she was convicted. Saying that the government will no longer publicize the fact of conviction is a very different thing from the conviction never having existed to begin with. An order of expungement would merely be confirming that the 3rd party record was accurate to begin with.
Posted by: Soronel Haetir | May 29, 2015 1:33:42 PM
Another federal employee at a very high level, that has guts and is for the people.
Not a lot if them around, but they are out there, truly greatful to read this case info.
Thank you, Doug.
Posted by: MidWestGuy | May 29, 2015 10:55:24 PM
A mensch on the bench! Bravo! We need a sea change in our approach. A criminal justice system that offers no hope of redemption and permanently disconnects people from productive employment is misguided. We at the New York State Bar Association are working toward a change in our state law to offer more hope to select, deserving, non-violent ex-offenders to have a second chance. I hope someday we can convince our leaders in Albany that the current laws are a mistake.
Posted by: Rick Collins | May 30, 2015 11:52:44 AM
Mensch on the bench? Horsepoop. The legal authority for this is what exactly? Whether there is authority or not to do it, it accomplishes nothing. Clown grandstanding. Even the judiciary does it now.
Posted by: Diogenes | May 30, 2015 2:09:39 PM
It is absolutely the right to expunge the record for those that have a conviction of a crime and never been in trouble for a number of years. They are suppose to do the penalty and it should be over with and not hindered by looking back at the record. Judge Gleason is outstanding, he should be very proud of himself for take his position.
I am a retired NYC Police Officer
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Posted by: Walter Kelvin | May 31, 2015 8:29:39 PM
What's the best, fastest and cheapest way to get an expungement for a 19 year old conviction of "Providing marijuana to a minor over the age of 14" fel ? Thanks for your attention
Posted by: Tom Estrada | Aug 30, 2016 3:38:37 PM