Expungement in Federal Courts?

Filed under: Criminal Law by Contributor @ July 20, 2015

A few days ago, United States District Judge John Gleeson of the Eastern District of New York ordered that a 13-year old federal conviction for fraud be expunged.  The ability to have a previous state criminal conviction expunged is available by statute and common law in Pennsylvania (learn more about expungement here).  However, it may surprise some to learn that the federal criminal justice system shows no such grace to those who have moved beyond their criminal past.

In Jane Doe vs. United States, an unidentified woman successfully convinced the trial court to expunge a conviction for fraud from her record.  She claimed that the conviction kept her from obtaining gainful employment and caused an undue burden.  Although the trial judge recognized “that employers are generally entitled to know about the past convictions of job applicants, and that their decisions based on those convictions are entitled to deference,” he added that  “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. ”

After undertaking an extensive review of Jane Doe’s file, Judge Gleeson determined 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.”

While the whole opinion is available here, in short, Judge Gleeson presents a picture of a woman who needs to work to support four children, who very much desires to work, who detests being on public assistance, who poses no financial risk to others, and who cannot find suitable employment because of the past conviction.  “Simply put,” Judge Gleeson writes, “the public safety is better served when people with criminal convictions are able to participate as productive members of society by working and paying taxes.”

In federal court, expungement is an equitable tool belonging entirely to the discretion of the judge and determined on a case-by-case basis.  It has been employed rarely, if at all, as I have seen many lawyers state in writing that there is no such thing as expungement in the federal courts.  However, as the country becomes more cognizant of the sorry state of our criminal justice system, perhaps Congress, or at least individual federal trial judges, will take it upon themselves to allow for expungement in cases where, on the balance, a clear slate is in the interest of society.

Adverse employment consequences of old convictions are excessive and counter-productive.  As Judge Gleeson writes, “the patchwork quilt of collateral consequences mentioned above produces results that are so anomalous they border on the farcical.”

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