JOHN GLEESON, District Judge:
Jane Doe filed an application on October 30, 2014, asking me to expunge her thirteen-year
However, even if one believes, as I do, 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, 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.
I have conducted such an investigation, and this is one of those cases. In addition to presiding over the trial in Doe's case and her subsequent sentencing, I have reviewed every page of the extensive file that was created during her five years under probation supervision. 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 was born and raised in Port-au-Prince, Haiti. In 1983, at age 24, she came to New York in search of a better life. She became a naturalized citizen in 1989. By 1990 she had three children from a relationship with a taxi driver who in that year left the family to return to Haiti. Doe's mother had come from Haiti in 1988 to help with the children, but she died in 1995. Another relationship ended prior to the birth of Doe's fourth child in 1996.
Doe enrolled in a nursing assistant program and became a home health aide. By 1997, when she first became involved in the criminal conduct that gave rise to her conviction, Doe's children were ages 12, 10, 7, and 1. She was raising them by herself on her net monthly income of $783. They lived in a two-bedroom apartment on the first floor of a six-story building in the Jamaica section of Queens. The monthly rent exceeded Doe's take-home pay. After visiting the home as part of the presentence investigation, a probation officer reported that crack dealers and crack addicts frequented the entrance to the building and its lobby.
In those circumstances, Doe participated in 1997 in one of the automobile insurance fraud schemes that were ubiquitous in this district at the time. The schemes involved, among other criminal participants: corrupt physicians and other health care professionals at clinics; organizers of staged car "accidents" (who were usually principals of car service businesses); drivers of livery cars, who would deliberately cause minor collisions; and people like Doe, who would climb into the back seat of a car before the staged collisions. A car full of passengers would be deliberately driven into an innocent motorist's car at low speed, often when the latter car was stopped at a light. A police officer was summoned, producing a police report, and the passengers would feign injuries. They were taken to a clinic, where they signed over their rights to no-fault insurance benefits to the clinic. The clinic would then bill the insurance companies for unnecessary (and usually unperformed) services, up to the $50,000 limit. The corrupt clinics
On August 1, 1997, Doe agreed to be involved in one of these staged accidents. She was one of the passengers in the back seat, and she falsely claimed that she was injured, assigned her no-fault insurance claim to a clinic, and represented that she had received medical services related to her fabricated injury. A civil claim was filed on her behalf, which was settled, and Doe received $2,500.
I have carefully reviewed the Probation Department's files on Jane Doe. They memorialize the five years she spent under supervision. The two files total almost 1,000 pages. They paint a portrait of a woman who (1) needs to work to support the four young children she was raising by herself at the time; (2) wants very much to work; (3) detests being on public assistance; and (4) poses no risk of financial harm to others. Along with the facts advanced in support of the instant motion, the probation files also show that during the 13 years since Doe was sentenced, her conviction has become an increasingly insurmountable barrier to her ability to work.
Early in her five-year probationary period, Doe got a job as a "house manager" at Agency One,
Doe actively began looking for other work, and in March 2004 she began working as a counselor at Agency Two, a home for families with children with mental disabilities. The probation officer noted on May 21, 2004 that Doe's supervisor was unaware of her conviction. Even with the
Despite her dire financial circumstances, Doe was intent on keeping up with her restitution obligation. I had ordered her to pay $25 per month. The October 2004 notes in the file state that she was actually two months ahead in her payments, explaining that "[t]hough she occasionally misses a payment, she doubles the payment the following month," and she apparently doubled her payment on two more occasions than she needed to.
By September 2004, for reasons not set forth in the file, Doe was back on public assistance. In December of that year she landed a part-time job as a relief counselor at Agency Three, a home for persons with mental illnesses and developmental disabilities. The job paid $10 per hour, but the hours were so low that Doe's total monthly income (including food stamps) hovered around $600 for three months. When her hours spiked in May 2005 she had the best month by far of the entire five years of probation, earning $2,248, and she promptly sent $740 of it to her three siblings in Haiti. In June and July her hours declined, as did her net income, to $1,008 and $1,120, respectively, and by August she was back on public assistance.
A September 14, 2005 note states that Doe reported to her probation officer that she had just gotten a new job. But the job went away, and a two-page handwritten note from Doe to the officer explained what had happened:
Doe kept looking for work and found it at Agency Four, a home for the elderly. The position was not only low-paying (Doe's monthly income for the five months she worked there never reached $1,000), but the employer would not allow Doe to take the time needed to see her doctor for a thyroid condition. As a result, she switched to Agency Five in May 2006. Agency Five is a home health care provider.
The move to Agency Five brought with it the risk of a fingerprint check, and that risk materialized two months later. Doe was fired on July 24, 2006, when her conviction came to light.
The probation officer's report covering July 2006 still has a yellow Post-It note stuck to it. On the note is the following plea from Doe:
The report for August 2006 includes Doe's statement that "right now I'm not working because criminal record."
Doe's file reveals that she remained unemployed until her probation was terminated on March 24, 2007. Since then the pattern has continued. Specifically, Doe's conviction does not prevent her from getting jobs as a home health care worker, but it has consistently prevented her from keeping those jobs. She doesn't lie to her employers, who do not ask her if she has a criminal record at the hiring stage. However, after she gets jobs, record checks are performed by her employers or others acting on their behalf. Once they learn of Doe's conviction, she gets fired. This has happened to her half a dozen times.
The government does not dispute any of the foregoing facts. Rather, it contends in opposition to the motion that Doe's employment difficulties do not amount to the extreme circumstances necessary to warrant expungement.
A conviction for even a minor federal felony can have wide-ranging effects on, among other things, a defendant's employment, housing, and educational opportunities. Those effects sometimes "impose additional burdens on people who have served their sentences ... without increasing public safety in essential ways."
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.
The growing concern in recent years about the collateral consequences of criminal
In the meantime, on a case-by-case basis, "expungement lies within the equitable discretion of the court[.]"
Doe seeks the expungement of a valid conviction, not a suspect arrest, and I am acutely aware that "courts have rarely granted motions to expunge arrest records, let alone conviction records."
This case presents extraordinary circumstances sufficient to warrant expungement. First, Doe's offense of conviction "is distant in time and nature from [her] present life."
Second, Doe has shown that her criminal record has had a dramatic adverse impact on her ability to work.
Doe was a minor participant in a non-violent crime. As the Supreme Court has
The government's main arguments against expungement are that Doe's circumstances are not sufficiently extreme and that it is entirely appropriate for employers in the health care field to have knowledge of her conviction of health care fraud.
The government's second argument, i.e., that Doe's health care fraud conviction should not be expunged because she seeks employment in the health care field, has obvious superficial appeal. Indeed, if Doe's conviction had arisen out of her work as a home health aide, the outcome of this application might well have been different. But facts matter, and the facts here are that a young woman raising four children by herself on wages that did not even cover the rent availed herself of an opportunity to make $2,500 illegally. That the scheme offered to her resulted in health care fraud was essentially fortuitous. In her circumstances at the time, Doe would have participated in any scheme to make ends meet. There was no specter at the time that she had used her training as a home health aide to help commit or cover up her crime. There is no specter now that she poses a heightened risk to prospective employers in the health care field.
Finally, there is something random and senseless about the suggestion that Doe's ancient and minor offense should disqualify her from work as a home health aide. The patchwork quilt of collateral consequences mentioned above produces results that are so anomalous they border on the farcical. For example, a conviction for even a minor crime can result in disqualifying a person from being a barber in New York.
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.
The seemingly automatic refusals by judges to expunge convictions when the inability to find employment is the "only" ground for the application have undervalued the critical role employment plays in re-entry. They are also increasingly out of step with public opinion. The so-called "ban the box" practice, in which job applications no longer ask the applicant whether he or she has been convicted of a crime, is becoming more prevalent.
Accordingly, Doe's application for an order expunging her conviction is granted. It is hereby ordered that the government's arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility, and that any electronic copies of these records or documents and references to them be deleted from the government's databases, electronic filing systems, and public record. Doe's real name is to be removed from any official index or public record. It is further ordered that 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. 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.
Finally with respect to the relief granted here, I welcome the input of the parties. My intention is clear: no inquiry of the federal or state government by a prospective employer should result in the disclosure of Doe's conviction. Effectuating that intent without unduly burdening those governments or impairing their legitimate law enforcement interests is not so clear, at least not to me. Thus I welcome any proposed modifications to the relief set forth above, and of course any such proposals by the government would not be regarded as a waiver of its opposition to my decision to expunge the conviction.
So ordered.
N.Y.S. Senate Introducer's Memorandum in Support of S7926 (July 7, 2014), available at http://public.leginfo.state.ny.us (search query: "Bill No.," "A09607," "2014," "Sponsor's Memo"); OCA 2014-98R.
The government has not challenged my jurisdiction to decide Doe's application, but that does not relieve me of my obligation to ensure that such jurisdiction exists. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). I conclude that it does. As mentioned above, Kokkonen acknowledged federal courts' ancillary jurisdiction over proceedings that "enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees." 511 U.S. at 380, 114 S.Ct. 1673. A claim of breach of contract — specifically, breach of an agreement that settled a prior federal suit — was held by the Court not to fall within that power. Id. at 380-81, 114 S.Ct. 1673 ("The facts to be determined with regard to such alleged breaches of contract are quite separate from the facts to be determined in the principal suit, and automatic jurisdiction over such contracts is in no way essential to the conduct of federal-court business.").
An expungement proceeding is different in kind. Its sole focus is the record of the conviction that occurred in this case, and the exercise of discretion it calls for is informed by, inter alia, the facts underlying the conviction and sentence and the extensive factual record created while Doe was under this Court's supervision for five years. And few things could be more essential to "the conduct of federal-court business" than the appropriateness of expunging the public records that business creates.
Typically, arrest records have been expunged where there was government misconduct or the conviction was somehow invalid, such as: (1) mass arrests which made the determination of probable cause impossible; (2) arrests effectuated only to harass civil rights workers; (3) police misuse of the records resulting in prejudice to the defendant; and (4) the statute underlying the arrest was later declared unconstitutional. Schnitzer, 567 F.2d at 540 (citations omitted).
All other trips outside the home needed to be applied for and approved separately. Trips to church and the grocery store had to be requested two days in advance. All the normal tasks of daily life required advanced planning and approval. On March 24, 2003, for example, Doe got permission to leave the house to take one of her daughters for braces. Another entry from the previous November memorializes the permission she received to leave the home to do her laundry.
In addition, Doe was required to complete a personal financial statement and execute authorization forms for credit checks, tax returns, education checks, and the disclosure of her medical record. There was no detail about her personal life for a five-year period that was not covered by the paperwork in her probation file. She was regularly subjected to drug tests. She was directed to submit a sample of her DNA for analysis and entry into the FBI database.
Another section of the probation file records the innumerable home and community contacts that are regular incidents of community supervision. Supervising probation officers came to her home regularly, always in pairs, and always unannounced.
In short, there is no sense in which expunging the record of Doe's conviction so that she can retain employment minimizes the punishment she faced for committing her crime.
