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June 23, 2015

DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order

As reported in this prior post, last month US District Judge John Gleeson examined the collateral workplace consequences of an old federal fraud conviction in the course of ordering the (legally questionable?) remedy of expungement in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here).  Now, as reported in this Wall Street Journal article, headlined "Justice Department Sets Its Sights on Rare Expungement Order," it appears that the Second Circuit will have a chance to consider this matter. Here are the basics:

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.

In his May order, U.S. District Judge John Gleeson nodded to “a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive.” He cited a 2011 letter by then Attorney General Eric Holder pressing state attorneys general to reassess state laws that limit the job prospects of ex-offenders. That same year, Mr. Holder established a council of 20 government agencies whose goal is “to remove federal barriers to successful reentry, so that motivated individuals — who have served their time and paid their debts — are able to compete for a job, attain stable housing, support their children and their families, and contribute to their communities.”

“If the government is trying to look out for people in these situations, why take this case of all cases?” said Brooklyn lawyer Bernard H. Udell, who is representing the woman whose conviction Judge Gleeson expunged. A spokeswoman at the Justice Department’s headquarters in Washington, D.C., declined to comment. A spokeswoman for the U.S. attorney’s office in Brooklyn had no immediate comment.

In 2002, Judge Gleeson sentenced the woman, who is identified in court documents by the pseudonym Jane Doe, to five years of probation for feigning injury in a staged car crash and falsely claiming to have received medical services as part of a scheme to collect insurance money. She landed several jobs as a health-care aide since her conviction but lost them after her record came to light in background checks, according to her petition. Judge Gleeson cited several factors in support of his decision to expunge her record, including the 17 years that have elapsed since she committed a crime, the trouble she has had keeping jobs, her age (mid-50s) and the nonviolent nature of her crime.

The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past. The brief said expungement should be used only in extreme circumstances, citing cases involving illegal arrests and police misconduct.

Prior related post:

June 23, 2015 at 03:29 PM | Permalink


"The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past."

I would like to know why they need to know about her criminal past? Why is anyone or any industry permitted to punish her (or anyone) further, and again and again. Has she not paid her debt to society for her wrongdoing? She was sentenced to 5 years of probation (which she successfully completed without incident), and it's been 17 years since without any further wrongdoing.

Has she not been sufficiently punished? Why should her debt to society be everlasting -- and without fair hearing as to her terminations from employment with any entity?

Once again, this doling out of punishment arbitrarily, unilaterally, and capriciously is unjust. Moreover, it undermines and contradicts the credibility and sentencing already handed down by Judge Gleeson 17 years ago.

Enough is enough. Punishments should be befitting of the crimes - nothing more and nothing less.

(And as we know, there are criminals walking amongst us in all areas of our lives. They just have not been found out - yet. Perhaps there are some even in the justice department.)

Posted by: Elizabeth A. Benedetto | Jun 24, 2015 10:05:57 AM

I would ask instead "why shouldn't they be?" As I see it a criminal sentence only satisfies the gulf created by the offense between the offender and the state, but has very little to do with the gulf created between the offender and other individuals.

Posted by: Soronel Haetir | Jun 24, 2015 12:15:45 PM

Is there a DOJ policy to oppose all expunctions?

Posted by: rak | Jul 27, 2015 10:51:34 AM

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