Picture this: An ex-offender is released from jail. While in jail, they
receive rehabilitation and are ready to live as a law-abiding, working
citizen. They start by looking for a job, only to be turned away because
of their previous old criminal convictions. A federal case in Brooklyn
may offer a solution for ex-offenders in this particular situation.
There are many states that allow ex-offenders to be granted an expungement,
concealing their criminal background from the general public. In fact,
Kansas state law allows expungements for numerous felonies and misdemeanors
after a certain period or time has passed, the person has stayed out of
trouble, and it would be in the interest of society. Alas, Kansas encourages
people to turn their lives around, and after doing so is given the opportunity
to start over with an expungement. In fact, as a
criminal defense attorney, I have helped numerous clients file petitions for
expungement in Kansas and clear their record.
Other states even go as far as allowing ex-offenders to go through some
sort of rehabilitation granting them a certificate that exempts them from
being denied the right to obtain professional licenses because of their
Our federal system, on the contrary, does not offer any sort of program
or grant expungements. This means, a felony will stay with someone for
the remainder of their lives, essentially branding them and standing in
the way of them obtaining good jobs, housing, etc.
While denying this right in federal cases serves as a deterrent, many officers
of the law, policymakers, and judges are rethinking this. They feel that
limiting job opportunities for ex-offenders increases their chances of
returning to prison.
A former Justice Department pardon attorney, Margaret C. Love, is heading
up a group of attorneys from Jones Day to help ex-offenders clear this
hurdle. They found an old 18th century law which they believe will help their case.
Part of the 1789 All Writs Act, the writ of audita querela is what Love
and her crew has found. This particular writ was used by debtors against
their creditors long ago. It allows courts to release the sanctions of
an otherwise valid judgment. Today, federal and state courts have been
using it in several criminal cases where the conviction “gives rise
to a subsequent injustice,” wrote the attorneys in a brief filed
in Brooklyn’s Federal District Court.
Ex-offenders can use audita querela to their advantage when they are being
denied certain rights because of their criminal history.
One example would be where an ex-offender loses their job because of prior
criminal acts. This could be a violation of due process. Another example
would be an offender not having the right to bear arms as a violation
of the Second Amendment.
“In such a case, a person convicted of an applicable crime would
have a legal or, technically, constitutional objection to the continued
enforcement of the judgment, thereby meeting the requirements for audita
querela relief,” the brief said.
Ex-offenders could also seek relief under the writ “where the totality
of the circumstances make continued enforcement of the judgment, in whole
or in part, unjust,” the lawyers wrote. The court systems would
be able to help them by lifting prior convictions or mandating no sanctions
be held against ex-offenders.
This brief was used in a case where a former nurse was convicted of health-care
fraud and was trying to get her record expunged. U.S District Judge John
Gleeson was overseeing this case and had expunged another defendant involved
in the same cases’ record prior to this hearing. Legal experts proclaim
this was the first scenario where a federal judge granted an expungement
on grounds that it interfered with employment. The Justice Department
has filed an appeal on this ruling.
The 56 year old nurse, related to as Jane Doe in court documents, staged
an incident where she drove her car into a collision. She then claimed
to have received medical services and tried to collect insurance money.
For this act of insurance fraud, she was sentenced to 15 months in prison.
Also, her nurses’ license was suspended for two years. In her petition,
she states that her record has prevented her from finding employment.
The Justice Department argues that while federal judges are able to grant
expungements for “equitable reasons.” One reason would be
difficulty in finding work, but in this scenario, Jane Doe’s case
wouldn’t merit it, prosecutors said in court documents. There has
not been a federal appeals court where judges are able to erase convictions
without “extreme circumstances,” the department said.