Jessica Otero’s request to the judge, made in neat handwriting, was simple: She wanted a second chance. Ten years after she was convicted of driving an illegal immigrant across the border, her felony record meant she could not get work in the medical field. “I have learned from my past mistakes and am headed down a positive path,” Ms. Otero wrote.
Federal district courts review dozens of similar requests a month, detailing how old convictions are affecting defendants’ lives. Most judges have a standard response: Courts can expunge convictions only in exceptional circumstances. While Ms. Otero’s two-page letter described fairly common circumstances, the judge’s response was unusual.
“Her concern is justified,” Larry Alan Burns, a Federal District Court judge in the Southern District of California, wrote in June. “The court is inclined to grant the motion.”
Through everything from protest movements to bipartisan legislation addressing the high prison population, the nation is in the midst of a searching examination of the criminal justice system, taking up long-simmering criticisms about race, inequality and law enforcement. While much of the focus has been on the police and prosecutors’ work, some judges are now taking a more active role, pushing for a reassessment of how defendants are punished.
“The popular view in our country has changed — we don’t want to hold somebody down forever and ever,” Judge Burns said in an interview. “I think judges should be aware of those things.”
It is hardly a uniform shift in judges’ attitudes, but across the country, some judges are refashioning sentences, asking prosecutors to drop cases that judges see as unfair, considering how to reduce the long-term impact of old convictions, and writing essays advocating change.
Among the moves: In June, Justice Anthony M. Kennedy wrote five pagesdenouncing solitary confinement in a Supreme Court case where solitary confinement was not the issue. Judge Jed S. Rakoff of Federal District Court in Manhattan has written essays recently attacking plea bargainingand mass incarceration. In a June law-review article, Alex Kozinski, a United States Court of Appeals judge for the Ninth Circuit, criticized a variety of criminal-justice issues, including fingerprint evidence, prosecutorial discretion and long sentences. These “are some of the reasons to doubt that our criminal justice system is fundamentally just,” he wrote. Other judges are putting out their point of view in decisions in individual cases.
“A growing number of federal judges, usefully insulated by life tenure, are feeling a need to speak out,” said Douglas A. Berman, a law professor at the Ohio State University Moritz College of Law. “Judges are moved by the broader public conversation about the need for reforms, and certain ones say, ‘That broader conversation ought to be reflected in the work I do, not just in the work that the political branch does.’ ”
In June, three judges for the United States Court of Appeals for the Seventh Circuit reviewed an Indiana case in which an Italian-born man who had never become a citizen said he did not realize that a guilty plea in his marijuana-growing case would result in deportation. He asked to withdraw the plea. A district court judge denied the motion, but the Court of Appeals reversed that decision.
Prosecutors argued that the man, Renato DeBartolo, could face a much more severe sentence at trial; thus his push to withdraw the plea was irrational. Judge Richard A. Posner, writing the Seventh Circuit panel’s unanimous opinion, disagreed, citing the changing public opinion on drugs.
“In light of the growing movement to legalize the sale of marijuana,” Judge Posner wrote, “a jury might have thought his offense trivial and either acquitted him or convicted him of some lesser offense.”
The judge then asked the government to reconsider even pursuing the case: “The government should consider whether having served the prison sentence the government originally recommended and having then languished in the custody of the Immigration and Naturalization Service for a year or more and then deported to a country in which he has never really lived, DeBartolo has been punished sufficiently and should now be allowed to go home to his wife and children without facing a new trial.” Legal proceedings in his case continue.
Mark W. Bennett, a Federal District Court judge in the Northern District of Iowa, also pushed prosecutors, writing in an opinion in which he described prosecutors’ “stunningly arbitrary” decision-making over whether to file information about a drug defendant’s prior convictions, which increases their sentences.
“These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency,” Judge Bennett wrote in 2013. “We as judges can and should do more.”
This summer, Judge Jack B. Weinstein of Federal District Court in Brooklyn, long known for his criticism of harsh sentences for the viewing of child pornography and for some drug offenses, questioned whether prison itself was an unfair punishment.
A defendant had pleaded guilty to possessing and sending child pornography using his computer. The defendant, now in his mid-20s, had poor mental development as a child and appeared to have been exposed to drugs in the womb, Judge Weinstein wrote. Placed into the foster care system, he was repeatedly raped by a foster brother and two separate foster fathers. Convicted at age 20 for showing child pornography to a boy, he was raped in prison, both by an individual and by a group of men. When he was released, he learned he had borderline personality disorder, depression and agoraphobia.
The defendant was supposed to be sentenced in June, but he appeared “deeply depressed,” Judge Weinstein wrote. The judge stopped the hearing, and instead asked the lawyers to address “whether sentencing this defendant — who has been raped multiple times — to the statutory minimum sentence of 15 years violates his right to be free from cruel and unusual punishment,” especially given the likelihood he would be placed in solitary confinement as a protection from rape.
Arguments in the case continue.
Also in Brooklyn, Judge John Gleeson, who has criticized prosecutors forusing the threat of mandatory minimum sentences to force defendants into pleas, and pushed them to drop charges so that mandatory minimums would not stack up, turned his attention to the consequences of convictions.
In 1997, a home health aide was raising four children on $783 a month in Queens. She participated in a staged auto accident “ubiquitous in this district at the time,” Judge Gleeson wrote, where passengers faked injuries and went to complicit medical clinics, which billed insurance companies for procedures that were never performed. The passengers often filed civil lawsuits, as the woman did, receiving $2,500.
Since her conviction, she has often lost jobs or had offers withdrawn. “People said I’m very sorry for you. I can’t hired you because criminal background checked and fingerprint,” she told the probation office in a handwritten note in 2005 (English is the woman’s second language). A year later, she wrote, “I don’t like welfare, I like to work.”
Last year, she filed a formal motion asking the judge to expunge the conviction.
The prosecution opposed her request, arguing that expunging should be allowed only in extreme circumstances, and this woman’s was not one of them.
Judge Gleeson disagreed. “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,” he wrote in granting the woman’s request. “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 re-enter society successfully.”
In June, another defendant, a nurse, also asked Judge Gleeson to expunge her 12-year-old conviction in a similar insurance-fraud scheme. Her lawyer, Mitchell A. Golub, wrote that she had lost jobs “a half dozen times in just the last two years” because of it.
As the government prepared its response, Judge Gleeson came up with a new idea: a certificate of rehabilitation that would show the defendant was now in good standing. With little legal precedent for that, he asked the prosecution and a policy expert to weigh in on whether that was an appropriate solution.
“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”
