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March 8, 2016

Judge John Gleeson invents and issues a "federal certificate of rehabilitation"

Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

March 8, 2016 at 09:19 AM | Permalink


Very innovative. Congratulations to Judge Gleason.

Posted by: Micael R. Levine | Mar 8, 2016 10:10:14 AM

I would love to hear your thoughts on this Prof. Berman. It seems substantially less problematic than his expungement order because it does not actually require any party to do anything. It doesn't purport to bind private parties from acting in any way. It's essentially the judge's opinion with the word "Order" at the top of the page.

Posted by: A Non-E Mous | Mar 8, 2016 10:42:38 AM

"I can certify that Doe has been rehabilitated."

Does this come with a certificate?

Seriously, good luck and keep trucking judge.

Posted by: Joe | Mar 8, 2016 11:32:09 AM

Judge Gleason's rationale is best expressed by his statement, "I had no intention to sentence her to the unending hardship she has endured in the job market." Most federal judges share Judge Gleason's concern about collateral consequences in cases like this. They should carefully consider Judge Gleason's equitable approach and adopt it.

Posted by: Michael R. Levine | Mar 8, 2016 11:34:27 AM

So long as this 'certificate' has no enforceable legal effect I don't have a problem with it. But the moment she brings a claim against a potential employer for not hiring her, or even against a data provider for not removing her name I do. Actually, in that second case I would have problems even if it were an actual expungement order. The conviction actually happened, just because the government chooses to forgive the offense doesn't mean anyone else needs to.

Posted by: Soronel Haetir | Mar 8, 2016 4:33:34 PM

That's cute. It doesn't appear to have any real legal effect but, who knows, maybe someone will give it some weight. Convictions are too permanent in their consequences. I hope this helps ameliorate that a bit.

Posted by: Erik M | Mar 8, 2016 5:52:45 PM

I've read about another certificate: Under 28 U.S.C. § 1495, the U.S. Court of Federal Claims has jurisdiction over damages claims by actually innocent persons who were wrongfully imprisoned for federal crimes.  To prevail, the plaintiff first needs to obtain a “certificate” establishing his innocence from the federal district court in which he was convicted (28 U.S.C. § 2513). 

Anyone cite me a sample of such a certificate, or a pleading & memo of Ps & As, requesting such a certificate?


Posted by: Barry J. Baker Sipe | Mar 8, 2016 10:59:22 PM

BREAKING NEWS: The 97th District Court of Montague County’s Community Supervision and Corrections Department Cody Busby, Director has admitted in a Court Hearing that he has no Oath of Office and was unaware that he needed one.

Incompetence gallops in the judicial system, ignorance of the Law is no excuse, The Constitution and the State Laws should be required reading before becoming a Public Employee.

It is State Law of Texas that all elected and all appointed Public Employees MUST have an Oath of Office.

The Director was appointed by the Court. The implications are numerous, all those people subjected to probation and paying fines by an unlawful public employee appointed by a Court.

Could this be fraud upon the court?

Could this be conspiracy by Public Employees?

Who is keeping the financial records?

Why are the courts always back logged?

Our local court is more like a circus act. The court never starts on time. The attorney's stand around by the jury box joking and talking, they show up unprepared for court and must take their client to a private room to talk to them before they suggest that they take a plea bargain.

Our previous judge informed everyone that this is his court (I was under the mistaken assumption that it was the peoples court) and there will be no cameras or recordings used.

A few years back, when the previous DA was running for judge (now current judge), he proudly admitted in his speech to the Tea Party that in all his cases he would attach probation requirements. He said that this is to pull them back into the system if they step out of line.

It seems that the only thing that gets accomplished with our public employees is that they can vote themselves higher pay raise and more benefits.

Posted by: LC in Texas | Mar 10, 2016 4:46:11 PM

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