Federal Appeals Court Nixes Judge’s Criminal Record Expungement Order

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 15, 2016

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A federal appeals court has issued a ruling preventing judges from expunging criminal records, forcing ex-offenders to seek relief from Congress.  The decision overruled a Brooklyn judge who decided grant a motion for a clean criminal record, squashing a potential avenue for a clean slate for men and women who have committed a federal crime.

Brooklyn Judge Grants Federal Record Expungement

In 2015 the Brooklyn-based US District Judge John Gleeson granted a motion filed by an ex-offender who asked to have her 2002 conviction removed from her record because it was hampering her ability to find suitable employment.  Gleeson had sentenced the woman, known as Jane Doe, 13 years earlier to five years of probation for faking an injury in a staged car accident in a failed insurance scheme.  After hearing of the woman’s rehabilitation efforts, which included opening a house-cleaning business while attempting to find work as a nurse, Judge Gleeson issued a “federal certificate of rehabilitation” in order to remove the conviction from her record and help her move on with her professional life.

While granting the motion to expunge Jane Doe’s federal record, Judge Gleeson wrote about the effect of her prior conviction and her rehabilitation by saying, “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 … 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.”

Judge Gleeson’s ruling raised eyebrows across the legal community because there is no such thing as a federal certificate of rehabilitation, or any other mechanism to expunge federal convictions.  The Justice Department, which opposed the initial motion, filed an appeal which argued Judge Gleeson had no authority from either the Constitution or federal law to issue the certificate of rehabilitation.

Federal Appeals Court Quashes Certificate of Rehabilitation

On appeal, the Second US Circuit Court of Appeals ruled that Judge Gleeson did not have the authority to expunge federal criminal records, and the certificate of rehabilitation was not valid.  The unanimous three-judge panel seemed regretful, and sympathetic to Jane Doe, but concluded that judges do not have the right – either from the Constitution or Congress – to unilaterally expunge most federal criminal records.  The 2nd Circuit’s opinion noted that Congress has granted limited authority to purge some criminal records, but federal judges cannot go beyond the written law without specific authorization from the legislative body to offer wide-ranging expungement. 

Despite ruling against Jane Doe, the panel of judges used their platform to encourage Congress to consider providing a pathway for federal offenders to have criminal records expunged.  Pointing to prior acts by the legislative to allow limited relief, the court of appeals wrote, “[Congress] might consider doing so again for certain offenders who, like Doe, want and deserve to have their criminal convictions expunged after a period of successful rehabilitation.”  Doe’s attorney, Bernard Udell, expressed disappointment in the court of appeal’s ruling, and told the press that many other attorneys across the country have expressed interest in pursuing similar motions for clients seeking relief from federal convictions.

Jane Doe Ruling a Focal Point for Federal Criminal Record Debate

Although Judge Gleeson’s efforts to expunge a federal criminal record failed to survive its first appeal, the case has brought national attention to an ongoing debate about the merits of strict rules prohibiting the expungement of federal criminal records.  According to Jane Doe, she requested the order because she has been either been turned down by employers or fired when they noticed her criminal history.  Her story is not unique – ex-offenders and expungement advocates across the country have made pointed arguments against public criminal records by pointing out that barriers to stable employment increase the risk of criminal recidivism. 

Opponents of criminal record expungement have argued that employers, particularly employers in some fields such as education or medical, have a right to know about past criminal behavior so they can assess the risks of job applicants.  Despite inroads by advocates for expungement and efforts by the Obama administration to encourage second chances, supporters of freely accessible criminal records have controlled Congressional action at the federal level.  With Judge Gleeson’s creative effort to nullify the need for federal expungement law thwarted, ex-offenders and their attorneys will need to hope for favorable Supreme Court intervention or a change in attitude among members of Congress.

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