Crime

Criminally Yours: There's No Such Thing As Wiping The Slate Clean

The best way to help people avoid recidivism is not to push them further down, but to give them the means to start over.

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justice-handcuffs-e1372182679824-300x286I get the sense, at least from reading the New York Times and listening to reports about the growing numbers of “alternative-to-incarceration” courts around the country, that we’re settling into a kinder, gentler period of criminal justice.

The years of harsh punishment, no matter the mitigation — drug addiction, mental illness, desperate poverty, lack of education — might finally be coming to an end as a more reasoned approach takes hold and the “broken windows” philosophy of policing is repudiated.

But then something always pops up to smash this optimistic perception and throw criminal justice back into the 1990s, when even jumping a turnstile gained you a criminal record.

Take for example the case of “Jane Doe.”  Convicted of fraud in 2001, she found her record prevented her from getting a host of jobs, licensing, housing, etc.  She was a single mom and making money for herself and her family was paramount.

Her crime wasn’t the worst and her punishment, 10 months home detention and five years probation, was generous.  But the conviction itself crippled her ability in the years that followed to find a decent-paying job.

What had she done to deserve this lifetime stigma?

In 1997, Doe pretended to be a car-accident victim.  She faked injury and recovered $2,500.  She was a small fry in a bigger scheme with many other players. At the time she was approached to join the conspiracy, she was desperate for money and saw it as a way to make a quick buck.  She was wrong.

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Once sentenced, she never committed another illegal act. She completed her home detention and probation without problem but found that with a felony conviction she couldn’t find work in her profession as a home health aide.  She got as many as five jobs, but each time they ran a background check and discovered the conviction she’d be fired, no matter how good her performance had been.

Many if not most employers run background checks on job applicants.  The jobs that have mandated state licensing are required by law to check the potential employees’ background; others run checks simply as a matter of course.

Finally, frustrated and desperate, Jane Doe decided to go back to the judge who originally sentenced her and ask him to expunge her conviction. Asking couldn’t hurt, so she did.

Expungement doesn’t exist in federal court nor, in fact, in most state courts. (This varies from state to state, with some permitting one bite at the apple, but most permitting none.)

Judge John Gleeson of the Eastern District of New York read her motion and was moved by it.  He understood the expansiveness of the collateral consequences that criminal convictions carry.  He knew that any conviction could block the convicted party’s ability to get housing, loans for schools or mortgages, food stamps, and of course, employment.

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In a surprise decision and one of the first of its kind, Judge Gleeson ordered that her conviction be expunged and that the government seal all records of it.

In granting her request, Judge Gleeson wrote that while he agreed that employers have the right to know about a candidate’s criminal history, “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.”

He then concluded this was one such case, stating that having conducted an extensive investigation and tried the underlying case himself, “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 v. U.S., 110 F.Supp.3d 448)

Prosecutors immediately appealed, but Doe’s position was joined by a Who’s Who of the indigent public defense world — the Association of the Bar of the City of New York, the Collateral Consequences Resource Center, the Community Service Society of New York, the National Lawyers Association of New York, the Bronx Defenders, the Fortune Society, the Legal Aid Society, the Legal Action Center, the National Employment Law Project, Open Hands Legal Service, Sargent Shriver National Center on Poverty Law, the Urban Justice Center, Frontiers of Freedom Institute, the National Association of Criminal Defense Lawyers, etc.

Last week, in a much awaited decision, the Court of Appeals for the Second Circuit decided Judge Gleeson was wrong.  They ruled he had no authority, no matter how sympathetic the case, or how much sense it made to enable the person to get a better paying job, stay out of the welfare system, and give her children stable footing — to undo a lawful conviction without the express mandate of law. (Doe v. U.S., 15-1967, decided August 11, 2016)

While the Second Circuit held the judge was within his authority to expunge Doe’s arrest records had the case been dismissed, he could not do the same with a valid conviction.  The court relied on a jurisdictional argument: had Congress wanted people to have their records expunged, it would have provided a mechanism for that to happen.

The court noted that there are specific instances when convictions can be erased, such as the successful completion of a drug court program, or by granting a person under 18 “youthful offender” status; however, these instances are narrow, and rarely afforded defendants. (At the time Doe picked up her conviction, diversion courts were practically non-existent in the U.S.)

The Court in its decision, however, cited a statement made by U.S. Attorney General Loretta Lynch (formerly the head of the prosecutor’s office where Judge Gleeson sat until last January): “Too often, Americans who have paid their debt to society leave prison only to find that they continue to be punished for past mistakes.  They might discover that they are ineligible for student loans, putting an education out of reach.  They might struggle to get a driver’s license, making employment difficult to find and sustain.   They might even find that they are not allowed to vote based on misguided state laws that prevent returning citizens from taking part in civic life.”

“Too often,” Lynch said, “the way that our society treats Americans who have come into contact with the criminal justice system turns too many terms of incarceration into what is effectively a life sentence.”

This is what Judge Gleeson sought to avoid.

The Second Circuit’s decision, by quoting the above passage, gave a nod in the right direction, but did nothing to help Doe or the thousands like her.

The best way to help people avoid recidivism is not to push them further down, but to give them the means to start over.  Maybe with this little nudge from the Second Circuit referencing the Attorney General’s comments, legislators throughout the country will take another look at expungement as a way to do this.  A balancing test would be appropriate.  Set up a number of years that the offender has to have led a lawful life before he can petition for his record to be wiped clean.  At least for the first-time offender, it’s a way to help him move on with his life, give him the means to work, find stable housing, and get a loan to complete his education, so he might never offend again.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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