Tuesday, September 15, 2015

Federal Expungement

No such thing, huh? Wrong. Judge Gleeson, federal district judge in Eastern District of New York, recently expunged a 13-year old health care fraud conviction, in Jane Doe v. US, 2015 WL 2452613 (EDNY May 21, 2015).
Expungement lies within the equitable discretion of the court. District courts in this and certain other circuits have ancillary jurisdiction over applications for orders expunging convictions. A request for expungement is usually is granted only in extreme circumstances after examining it individually on its merits to determine the proper balancing of the equities. Specifically, the government's need to maintain arrest records must be balanced against the harm that the records can cause citizens (internal footnotes and quotations omitted).
The Court was particularly compassionate toward Jane Doe and the harm suffered from the old conviction. She is Haitian immigrant and single mother solely responsible for the care of her children, but supporting them was extremely difficult because of her record. "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." This was not a light undertaking for the Court, which "reviewed every page of the extensive file that was created during her five years under probation supervision" and efforts to remain gainfully and legitimately employed.

This is a rich opinion, even beyond the rarity of the legal issue. The Court did not limit consideration to the facts of this case, but looked to broader issues of race and collateral consequences:
  A criminal record poses an especially high barrier to employment. Nearly seventy percent of U.S. employers now perform some form of criminal background check on prospective employees. A criminal record exacerbates the increased difficulty that older workers like Doe already face in the job market. Those difficulties are further exacerbated by race. Doe is black, and studies show that her race is even more of an impediment to her employment prospects than her conviction.
 Echoing the Supreme Court in Gall v. US, Judge Gleeson noted that Doe had been punished, "As the Supreme Court has made clear, while prison terms are qualitatively more severe, Doe's five-year term probation was serious punishment. Moreover, intermediate sanctions, like the ten-month period of home detention with electronic monitoring I imposed upon Doe, can inflict meaningful additional punishment without risking the loss of a defendant's children to foster care. Anyone who is not persuaded that home detention is real punishment need only review the section of Doe's probation file that is devoted to the home confinement condition."

Rejecting all of the Government's opposition, Does's expungement was granted. The remedy was broad:

1. The government's arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility,

2. Electronic copies of these records or documents and references to them be deleted from the government's databases, electronic filing systems, and public record.

3.Doe's real name is to be removed from any official index or public record.

4. 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.

5. 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.

"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." Let's hope there is a fresh look, and that more courts, and perhaps even Congress, are willing to follow Judge Gleeson's lead.

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