Obama’s DOJ Fights Judge on Actual Justice Reform

December 23, 2015 • Commentary
By Nat Hentoff and Nick Hentoff
This article appeared on Cato​.org on December 23, 2015.

In a July 30 Huffington Post op‐​ed, U.S. Attorney General Loretta Lynch argued that “in order to truly make our communities safer, we must make sure that people who have served their time are able to fully and productively engage in our society … and lead law‐​abiding lives.”

Lynch echoed these sentiments last week at a Second Chance Act conference, speaking before providers who run programs to ease the reintegration of newly released prisoners back into their communities. Valerie Jarrett, Obama’s point person on criminal justice reform, was in the audience as Lynch announced the creation of a National Clean Slate Clearinghouse to assist local jurisdictions in helping former inmates to clean their criminal records.

But the lofty rhetoric of the attorney general on second chances for convicted felons doesn’t match the actual practice of Department of Justice (DOJ) prosecutors. Exhibit A is a brief filed by the DOJ earlier this year in the case of Jane Doe v. United States, which opposed a woman’s petition to have her criminal record sealed because her nonviolent insurance fraud conviction prevented her from keeping steady employment.

Judge John Gleeson’s lengthy memorandum in the case painted a poignant portrait of a single mother struggling to raise four children by herself on wages that did not even cover the family’s rent. His description of the plight of the working poor, hobbled by the disabilities imposed by ancient criminal convictions, was worthy of Dickens.

But it was not a work of fiction. Gleeson’s arguments were based on a painstaking review of the facts of Jane Doe’s case, peppered with references to scholarly articles and studies on the collateral consequences (penalties, disabilities and disadvantages) imposed upon people as a result of a criminal conviction.

“Doe’s criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law‐​abiding member of society,” Gleeson wrote in his decision ordering that Doe’s criminal conviction be expunged and sealed from public view. “It has forced her to rely on public assistance when she has the desire and the ability to work.”

Gleeson’s 16‐​page memorandum even quoted a 2011 letter from former Attorney General Eric Holder that asked states to eliminate the collateral consequences of criminal convictions that do nothing to increase public safety. Ironically, Holder’s arguments that “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” failed to persuade the federal prosecutor assigned to Doe’s case.

“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,” Gleeson wrote. “There is an increasing awareness that continuing to marginalize people like Doe does much more harm than good to our communities.”

Gleeson swatted away the DOJ’s objections to Doe’s petition, arguing that “automatic refusals … 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. …”

“There is no justification for continuing to impose this disability on her,” the judge continued. “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.”

On Oct. 19, a New York Times editorial praised Gleeson’s innovative ruling, noting that his bold decision to expunge and seal Doe’s criminal record in the face of DOJ opposition “was significant because there is no federal law that allows for expungement. … In fact it appears to be the first time that a federal judge has expunged a conviction for this reason. It should not be the last.”

The DOJ’s opposition to the expungement and sealing of Jane Doe’s criminal record reflects a schizophrenic disconnect between the public statements of Obama administration officials and the everyday actions of federal prosecutors throughout the U.S. The pattern has been for top White House and DOJ officials to pay lip service to justice reform in speeches, op‐​eds, letters and memorandum, while the prosecutors ignore these directives in the courtroom. Rather than opposing petitions filed in federal courts by people seeking expungements, and the sealing of criminal records, the DOJ should be encouraging the filing of these petitions.

Actual criminal justice reform will continue to elude Obama until he stops enabling a carceral culture of punitive prosecutions that evaluates success by win‐​loss records and the length of convictions obtained.

“We talk about numbers, but at the end of the process it’s not a number that’s getting the sentence,” Judge Gleeson told NPR in December 2014. “It’s a person, a person with a family from a community.”

About the Authors
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.