Sentenced To A Lifetime Of Unemployment

Jane Doe, a pseudonym, moved to expunge her conviction before Judge John Gleeson in the Eastern District of New York.  It wasn’t that evidence came to light that she was innocent of the crime. It did not, and she was not.

It wasn’t that her conviction for healthcare fraud wasn’t relevant to her current circumstances.  She was a home health aide, it was directly relevant, at least on its surface. But as Judge Gleeson wrote in his decision:

I sentenced her to five years of probation supervision, not to a lifetime of unemployment.

Jane Doe’s background was fairly common, a mother of four whose husband left her, working as hard as she could. Still, she was unable to earn enough to pay her rent, no less feed her children.

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.

A sweet life, right?  So she became embroiled in an insurance fraud involving minor car accidents that fed medical clinics with no-fault money. She was convicted and sentenced for it. She committed no further crimes and completed her probation without incident. Well, almost without incident:

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.

And yet, her efforts to work, to pay rent and feed her kids, to pay her restitution, were stymied.

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:

The problem right now. Any placed you fill any application for job you suposed to make fingerprint and background checked. For me, this is the problem. I’ve applied so many places to work. Everything is O.K. When people calling you for an interview, I fail because fingerprint and criminal background checked came back. People said I’m very sorry for you. I can’t hired you because criminal background checked and fingerprint. I’m a patient woman I’m still going to looking for different placed or private duties to do . . . .

Rinse and repeat.  Each new employer would run a background check on Doe, and then fire her. They had no choice. She had no choice. There was no apparent end to the cycle.  And so Doe sought to have the conviction expunged.

Expungement is an “extreme” remedy, residing in a court’s “ancillary jurisdiction” to be granted only under “extreme circumstances” based on the unique circumstances of the case.  The government countered that Doe was, in fact, guilty of the crime for which she suffered collateral consequences, and that the crime relates to her employment: Shouldn’t future health care employers be aware of her conviction for health care fraud?  Both arguments have merit.

Yet, Judge Gleeson saw the larger picture.

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.  A criminal record exacerbates the increased difficulty that older workers like Doe already face in the job market. Those difficulties are further exacerbated by race. Doe is black, and studies show that her race is even more of an impediment to her employment prospects than her conviction.

The growing concern in recent years about the collateral consequences of criminal records has prompted various efforts to address how the criminal justice system can better balance its law enforcement goals with society’s interest in the successful rehabilitation and reentry of individuals with criminal convictions.

Notwithstanding urge for conviction, whether to punish or send a message, this decision not only parses the extreme circumstances for one defendant, who by Judge Gleeson’s account is the perfect candidate for expungement, but highlights the significance of collateral consequences of conviction.

This is the stuff few consider when screaming for blood, that it’s not just the immediate sentence imposed, be that incarceration or probation, but a future saddled with hungry children and an insurmountable burden to get and keep lawful employment to feed them.  We are focused on recidivism, yet create a situation where recidivism may be the only option available. If they can’t work, and they must still eat, what are they going to do?

The “block the box” movement, preventing employers from inquiring or running criminal background checks on new hires so that a person with a criminal record can find legitimate employment, is a critical step in giving people an opportunity to survive after conviction.

Of course, many argue that depriving employers of the opportunity to learn salient information about their new hires precludes them from making sound employment decisions, and puts them, other employees and customers/clients/patients at risk.

After all, the person was convicted, and convicted of a variation of health care fraud.  What if Doe was to steal from her patients? Wouldn’t it be the home health agency’s responsibility for introducing Doe into some trusting patient’s home?

Yeah, it’s a concern, but the concern flows either way. We’re no better off depriving Doe of the opportunity to obtain gainful, lawful employment so that there is no need to resort to crime, and yet we do not want anyone to suffer by denying them access to salient information about Doe’s background.

Ultimately, a return to the maxim that she paid her dues to society must prevail, as anything else creates a massive underclass of unemployable people for whom there is no survival other than crime. But if it takes a motion to expunge before a federal judge in each instance to achieve that goal, it’s never going to happen.  Very few have the foresight of Judge Gleeson, and, frankly, not too many convicts have a story as clear and touching as Doe’s.

H/T Kathleen Casey

13 thoughts on “Sentenced To A Lifetime Of Unemployment

  1. Bartleby the Scrivener

    ‘F’ is the scarlet letter of our time. Once a person is convicted of a felony, their options for significantly gainful employment diminish rather strongly. We need a basic administrative process wherein one may have one’s record expunged without it being an extreme measure. Quite the opposite, for most crimes I think it should be an automatic part of one’s sentence.

    “You mugged someone, but if you aren’t convicted of anything more serious than a traffic offense for the next years, your record will be cleared” seems pretty reasonable to me.

    1. SHG Post author

      Some states have such a procedure. Others do not. The feds, as this decisions, kinda does, but not really. But even so, people need jobs when they get out, not ten years later, if they’re going to turn their lives around. But expungement isn’t available, if at all, until years later. Until then, I guess they just go hungry.

  2. grberry

    Have any block the box movements tried to tie the change in the employment application process with relieving an employer’s liability in civil cases for hiring someone with a poor background who later does something wrong?

    1. SHG Post author

      That’s a good question. Not that I’m aware of. But then, if an employer is denied access to a person’s criminal history, it would probably present an insurmountable obstacle to suit for negligent hiring on that basis as a matter of law. Maybe.

      1. John Burgess

        And in that “maybe” lies the rub.

        As an would-be employer, you not only have to hope for the best from a jury, but from your insurance company as well. A temptation to come waaaay out on a limb is one most people, most of the time, are willing to avoid. A little clarity — no, a direct ruling from the USSC — could put the problem to bed, but nobody’s going to live that long.

        But anyway… in this time of “everything’s forever on the Internet,” an expungement (outside of Europe) isn’t a memory hole. At best, it’s going to be an opportunity to explain a discrepancy with the application. Except that discrepancies are usually dealt with by junking the application.

        1. SHG Post author

          Would an employer go out on a limb to give a job to an ex-con and risk liability without an iron-clad guarantee that it wouldn’t come back to bite him in the butt? Some. Not many.

        2. Christopher F. Thurston Sr.

          The U.S.S.C. can’t do anything for such an individual. The real issue is the justice system and the misplacement of taxpayers funds for punishment instead of education, prevention, and career building. The issue of due process and the prior proceedings that were used to convict this person compromises the fundamental fairness as it relates to the punishment (collateral consequences) in this case. In the federal system under Title 18 U.S.C. 3553(a), an individual is suppose to be allowed to present mitigating factors for possible considerations for mitigation of sentence. The system for one serving their time and then repatriating back into society is an illusion we can’t continue to put a band-aid on the situation to prevent the collateral catastrophes. I have a solution but I am not in the capacity to have my voice heard in an equitable forum of change. It has all to do with due process and equal protection issues.
          .

          1. SHG Post author

            This is a law blog, with most readers being lawyers and judges. Your comment is utter gibberish. Please don’t.

  3. Gloria Wolk

    And then we have the problem of so many false guilt pleas–and the collateral consequences for people who are factually and legally innocent.

    1. SHG Post author

      Someone who enters a false guilty plea may be factually innocent, but they are not legally innocent. Legally, they are 100% guilty.

  4. David Powers

    Unfortunately, in this day in age, an expungement is almost worthless. Their are many companies that will do a cheap background check, but they utilize only a handful of databases that are maintained by just a few players. The companies that run these databases continually mine the data from the local courts to feed new convictions into their databases. However, if a record is expunged, no such process exists to remove the conviction from the database. I spent thousands trying to remove my expunged record from these databases. It was no easy task. It took a lot of time, effort and money and was still not 100% effective.

    The best you can do is tell the employer that you had a record but it was since expunged, but this really does nothing for your job prospects.

    1. SHG Post author

      The feds aren’t like the states when it comes to selling records to these databases. The states are a lost cause, as it’s a one way street. There is still some hope for the feds.

      1. David Powers

        Well I hope it works out for Jane Doe. Of course, we’ll never know. . . but consider me a skeptic.

        At least Judge Gleeson’s thorough and well written decision is a step in the right direction.

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