BREAKING NEWS: 2 Circuit Denies Criminal Expungement

August 11, 2016

The issue of whether a criminal record can be expunged has taken on added urgency in this digital age.  More and more information is more easily available -- and that includes damaging records of criminal charges and convictions. In Jane Doe, Petitioner-Appellee, v. United States of America, Respondent-Appellant (Opinion, 2Cir,15-1967-CR / August 11, 2016) the United States Court of Appeals for the Second Circuit ("2Cir") was presented with the issue of:

[W]hether a district court has ancillary jurisdiction to expunge all records of a valid conviction. In 2001 petitioner appellee Jane Doe was convicted in the United States District Court for the Eastern District of New York (Gleeson, J.) of health care fraud and was sentenced principally to five years' probation. In 2014 Doe moved to expunge all records of her conviction because it prevented her from getting or keeping a job as a home health aide. Relying on this Court's decision in United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), the District Court held that it had jurisdiction to entertain Doe's motion and granted it. Because we conclude that Schnitzer applies only to arrest records, we hold that the District Court lacked jurisdiction to consider Doe's motion.We therefore VACATE and REMAND with instructions to dismiss Doe's motion for lack of jurisdiction. . .

As more fully explained in the Opinion:

The unfortunate consequences of Doe's conviction compel us to offer a few additional observations.  First, our 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 expunge after a period of successful rehabilitation. Second, only a few months ago (while this appeal was pending), the Attorney General of the United States recognized and aptly described the unfortunate lifelong toll that these convictions often impose on low‐level criminal offenders:

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. Landlords might deny them housing because of their criminal records - an unfortunately common practice. 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. . .

Pages 17 -18 of the Opinion

In contrast to Judges Pooler and Lohier, Judge Livingston noted, in pertinent part:

Second, I do not join the majority's discussion of the merits of affording courts jurisdiction to expunge criminal convictions, which begins on page 17.  I am sympathetic to the concerns the majority raises in this dicta, but I note that there are other significant considerations - including the value of governmental and judicial transparency - that must also be assessed in the context of this policy debate.  Having concluded that we lack jurisdiction to reach the merits of this case, I would not suggest to Congress how it might go about assessing and weighing these equities.