Mimesis Law
22 January 2020

2nd Circuit Corrects Judge Gleeson’s “Error” Of Mercy

August 18, 2016 (Fault Lines) — Judge John Gleeson of the Eastern District of New York recently did a nice thing. When a former defendant (“Jane Doe”) asked him to expunge her conviction, he did it. As they say in New York, bing, bang, boom, right? Unfortunately, it wasn’t that easy. It never is. Gleeson’s order of expungement was reversed by the Second Circuit.

The case went like this:

In 1997 Doe, a single mother with no prior criminal history, worked as a home health aide but struggled to pay her rent. That year Doe decided to join an automobile insurance fraud scheme in which she posed as a passenger in a staged car accident.  As part of the scheme she feigned injury and recovered $2,500 from a civil claim related to the accident. In 2001 a jury convicted Doe of “knowingly and willfully” participating in a “scheme . . . to defraud any health care benefit program” in violation of 18 U.S.C. § 1347. On March 25, 2002, the District Court imposed a sentence of five years’ probation and ten months’ home detention, as well as a restitution order of $46,701.

Doe completed her probation, but the scarlet “F” stayed with her, despite having lived “an exemplary life” since the conviction. She had trouble finding a steady work as a home health care worker; and when she could find work, as often as not she was fired as soon as employers found out about her conviction. Judge Gleeson reasoned that since he “had sentenced Doe to five years of probation, not a lifetime of unemployment,” expungement of the conviction was appropriate.

Judge Gleeson primarily relied on two cases to establish “ancillary jurisdiction” to provide a justification for the expungement. The first was U.S. v. Schnitzer, which permitted the destruction of arrest records after a case is dismissed. The second was Kokkonen v. Guardian Life Insurance,  which deals with a court’s ability to enter orders to see that its purposes are carried out.

The Second Circuit made short work of Gleeson’s rationale. It held with respect to Schnitzer that it only applied to arrest records after a dismissal, not to after the fact convictions a decade later. With respect to Kokkonen, the circuit court said that

The District Court’s sentence had long ago concluded and its decrees long since expired by the time Doe filed her motion.  Under those circumstances, expunging a record of conviction on equitable grounds is entirely unnecessary to “manage [a court’s] proceedings, vindicate its authority, [or] effectuate its decrees.”

In other words, Gleeson was waving his hands and squinting in order to justify doing the morally correct thing, which nevertheless was not supported by the law.

There’s an undertone of sympathy in the Second Circuit’s opinion, and it goes so far as to give Congress a gentle nudge:

[O]ur holding that the District Court had no authority to expunge the records of a valid conviction in this case says nothing about Congress’s ability to provide for jurisdiction in similar cases in the future.  As described above, Congress has done so in other contexts.  It 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.

The Second Circuit has failed to account for the fact that Congress, as currently constituted, couldn’t provide a stool sample if it was locked in a cholera ward, but that’s the system we have.

This is a problem that’s only going to get worse with time. Pre-computer, and pre-internet, it took a fair amount of effort to actually discover if a person had been convicted of a crime. Now it’s as easy as, if not a Google search, a search of the court’s online records. Or, better yet, pay one of the innumerable background and credit check companies to do it for you. And once you’re in the database, the computer never forgets. This is unfortunate, because for people like Doe, their redemption for the good of society requires a little forgetfulness on society’s part.

The case is similar to the ranchers in Oregon who were sentenced to a term below the mandatory minimum, and had to go back to prison to serve the balance of their term. Gleeson did a good thing…but he exceeded his authority in doing so.  Much as one may sympathize with Gleeson and Doe, the Second Circuit is correct. Good intentions aside, judges can only do what the law allows them to do. The end still doesn’t justify the means.

3 Comments on this post.

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  • Anon.
    18 August 2016 at 10:24 am - Reply

    Why don’t we go back to having a federal parole system? One that works and isn’t haphazard. This would allow judges to stay within the bounds of the sentencing guidelines, and would not condemn prisoners to overly harsh punishments when they demonstrate that they have taken large steps at reformation.

    For those who have already served their sentence, like Jane Doe, why don’t we have a federal pardon board that actively assists the executive who issues full pardons. A system that is accessible to people who have genuinely demonstrated that they have reformed. I’m not suggesting one where receiving a pardon is easily accomplished, but a system where it is possible and accessible.

    Maybe I’m just dreaming, or kidding myself. But my state has both. Sees to work well.

  • bacchys
    18 August 2016 at 3:01 pm - Reply

    I agree with the second circuit, though I hate the result.

    This is a case that cries out for executive clemency.

  • robert
    19 August 2016 at 2:32 pm - Reply

    The defendant may be left with no choice but to file a complaint under relevant state and/or local laws which make it illegal to take a prior criminal record into consideration viz. employment.
    Robert