UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------ x Jane Doe,

Petitioner,

-against-

United States of America,

Respondent.

) ) ) ) ) ) ) ) )

No. 1:15-mc-01174-JG

------------------------------------------------------ x

BRIEF OF AMICA CURIAE MARGARET COLGATE LOVE

Dated: October 8, 2015 OF COUNSEL: Leigh A. Krahenbuhl Jones Day 77 W. Wacker Drive Chicago, IL 60601.1692

Jones Day

By: /s/ Todd R. Geremia Todd R. Geremia 222 East 41st Street New York, NY 10017.6702 Lawrence D. Rosenberg (Pro hac vice admission pending) Paul V. Lettow (Pro hac vice admission pending) 51 Louisiana Avenue, N.W. Washington, D.C. 20001.2113 Attorneys for Amica Curiae Margaret Colgate Love

Case 1:15-mc-01174-JG Document 14-1 Filed 10/08/15 Page 1 of 35 PageID #: 94

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES ......................................................................................................... ii

INTRODUCTION ......................................................................................................................... 1

DISCUSSION ................................................................................................................................ 5

I. THE WRIT OF AUDITA QUERELA UNDER THE ALL WRITS ACT PROVIDES A BASIS FOR RELIEVING THE COLLATERAL CONSEQUENCES OF A CONVICTION ........................................................................ 5

A. Audita Querela Relief May Be Granted Where There Is a Legal Objection to the Continued Enforcement of a Judgment........................................................ 8

B. Audita Querela Relief Could Be Available in a Purely Equitable Context Where the Continued Enforcement of a Federal Criminal Judgment Would Be Unjust ............................................................................................................. 11

C. A Writ of Audita Querela May Be Issued to Provide Either General or Targeted Relief..................................................................................................... 14

II. THE COURT MAY RECOMMEND A PRESIDENTIAL PARDON TO RESTORE AN OFFENDER’S RIGHTS AND REMOVE THE STIGMA OF CONVICTION ................................................................................................................. 15

A. There Are Few Alternatives to Presidential Pardon Under Federal Law to Address the Collateral Consequences of Conviction ........................................... 16

B. Courts Recommended Pardons in English Common Law ................................... 17

C. Courts Have Routinely and Properly Recommended Pardons in the United States .................................................................................................................... 19

D. A Judicial Recommendation for a Presidential Pardon is Potentially Useful and Efficacious..................................................................................................... 23

III. THE SUPREME COURT’S DECISION IN KOKKONEN V. GUARDIAN LIFE INSURANCE CO. OF AMERICA DOES NOT AFFECT AUDITA QUERELA OR A JUDICIAL RECOMMENDATION FOR A PRESIDENTIAL PARDON .......... 24

CONCLUSION ............................................................................................................................ 25


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TABLE OF AUTHORITIES

Page

CASES

Balsley v. Commonwealth, 428 S.W.2d 614 (Ky. 1967), overruled on other grounds, Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003) .............................................................................................6, 7

Binderup v. Holder, No. 13-cv-06750, 2014 WL 4764424 (E.D. Pa. Sept. 25, 2014) .............................................11

Boynton v. Boynton, 186 Mo. App. 713, 172 S.W. 1175 (1914) ..............................................................................13

Bryant v. Johnson, 24 Me. 304 (1844)....................................................................................................................13

Doe v. INS, 120 F.3d 200 (9th Cir. 1997) ...................................................................................................11

Doe v. Prosecutor, Marion Cnty. Ind., 705 F.3d 694 (7th Cir. 2013) ...................................................................................................11

Doe v. United States, No. 14-MC-1412, 2015 WL 2452613 (E.D.N.Y. May 21, 2015) ...........................................24

Dretke v. Haley, 541 U.S. 386 (2004) .................................................................................................................23

Ejelonu v. I.N.S., 355 F.3d 539 (6th Cir. 2004) ...............................................................................................6, 12

Ex Parte Garland, 71 U.S. 333 (1866) ...................................................................................................................15

Foont v. United States, 93 F.3d 76 (2d Cir. 1996)...........................................................................................................6

Furst v. New York City Transit Authority, 631 F. Supp. 1331 (E.D.N.Y. 1986) ........................................................................................10


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Green v. Missouri Pac. R. Co., 523 F.2d 1290 (8th Cir. 1977) ...................................................................................................4

Greene v. McElroy, 360 U.S. 474 (1959) ...................................................................................................................9

Gregory v. Litton Systems, 472 F.2d 631 (9th Cir. 1972) .....................................................................................................4

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) .....................................................................................................................9

Humphreys v. Leggett, 50 U.S. (9 How.) 297 (1850) ...................................................................................................12

In re Taylor, 60 Cal. 4th 1019, 343 P.3d 867 (2015) ....................................................................................11

Kindem v. City of Alameda, 502 F. Supp. 1108 (N.D. Cal. 1980) ........................................................................................10

Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994) .................................................................................................................24

Lewis v. Alabama Dep't Pub. Safety, 831 F. Supp. 824 (M.D. Ala. 1993) .........................................................................................10

Lovejoy v. Webber, 10 Mass. 101 (1813) ................................................................................................................13

Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977) .................................................................................................10

Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150 (10th Cir. 1946) .................................................................................................13

Pordum v. Board of Regents, 491 F.2d 1281 (2d Cir. 1974)...................................................................................................10

Schick v. Reed, 419 U.S. 256 (1974) .................................................................................................................22

Smith v. Bank of Am. Corp., 865 F. Supp. 2d 298 (E.D.N.Y. 2012) .....................................................................................10


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Smith v. Fussenich, 440 F. Supp. 1077 (D. Conn. 1977) .........................................................................................10

State v. Letalien, 2009 ME 130, 985 A.2d 4 (2009) ............................................................................................11

State v. Williams, 129 Ohio St. 3d 344, 952 N.E.2d 1108 (2011) ........................................................................11

United States v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004) ......................................................................................21

United States v. Ayala, 894 F.2d 425 (D.C. Cir. 1990) .................................................................................9, 11, 12, 13

United States v. Fonseca-Martinez, 36 F.3d 62 (9th Cir. 1994) .........................................................................................................8

United States v. Ghebreziabher, 701 F.Supp. 115 (E.D. La. 1988) .........................................................................................6, 14

United States v. Grajeda-Perez, 727 F. Supp. 1374 (E.D. Wash. 1989) .............................................................................6, 8, 14

United States v. Haro, CR No. 85-00612 WJR (C.D. Cal. May 30, 1990) ..................................................................13

United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991) .................................................................................................21

United States v. Holder, 936 F.2d 1 (1st Cir. 1991) ..................................................................................................11, 12

United States v. Johnson, 962 F.2d 579 (7th Cir. 1992) ...................................................................................................11

United States v. Khalaf, 116 F. Supp.2d 210 (D. Mass. 1999) .................................................................................6, 8, 9

United States v. LaPlante, 57 F.3d 252 (2d Cir. 1995)...............................................................................................7, 8, 12

United States v. McDade, 639 F. Supp. 2d 77 (D.D.C. 2009) ...........................................................................................21


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United States v. Morgan, 346 U.S. 502 (1954) ...............................................................................................................6, 7

United States v. Ortero [sic], No. 15 CR 1996-LAB (S.D. Cal. June 9, 2015) ........................................................................5

United States v. Reyes, 945 F.2d 862 (5th Cir. 1991) ...........................................................................................6, 8, 11

United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988) ............................................................................. passim

United States v. Tablie, 166 F.3d 505 (2d Cir. 1999).....................................................................................................11

United States v. Torres, 282 F.3d 1241 (10th Cir. 2002) .................................................................................................8

United States v. Wilson, 32 U.S. 150 (1833) ..................................................................................................................17

Villafranco v. United States, No. 2:05-CV-368BSJ, 2006 WL 1049114 (D. Utah Apr. 18, 2006) ...................................7, 13

Wallace v. State, 905 N.E.2d 371 (Ind. 2009) .....................................................................................................11

STATUTES

18 U.S.C. § 3607(c) .........................................................................................................................4

28 U.S.C. § 1651(a) ............................................................................................................... passim

29 U.S.C. § 504 ..............................................................................................................................17

Cal. Penal Code § 4852.13(a) ........................................................................................................23

730 Ill. Comp. Stat. Ann. 5/5-5.5-55 .............................................................................................14

N.C. Gen. Stat. § 15A-173.2(d) .....................................................................................................14

N.J. Stat. Ann. § 2A:168A-7 ..........................................................................................................14

Ohio Rev. Code Ann. § 2953.25 ....................................................................................................14


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OTHER AUTHORITIES

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) ...............................................................................................................3

Miriam Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L. & Soc’y 1 (2005) .............................................................................10

Black’s Law Dictionary (5th ed. 1979) ........................................................................................5, 8

Black’s Law Dictionary (10th ed. 2014) ..........................................................................................5

3 William Blackstone, Commentaries on the Laws of England (William D. Lewis ed. 1900) ..................................................................................................................................13

1 Joseph Chitty, A Practical Treatise on the Criminal Law (Phila. ed. 1819) ..............................18

Clemency Statistics, Office of the Pardon Attorney, U.S. Dep’t of Justice, http://www.justice.gov/pardon/clemency-statistics (last updated Oct. 2, 2015) .......................5

Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel 160 (1995) ................................15, 17

Alec Ewald & Christopher Uggen, The Collateral Effects of Imprisonment on Prisoners, Their Families, and Communities, in The Oxford Handbook of Sentencing and Corrections (Joan Petersilia & Kevin R. Reitz eds., 2012) ..............................2

Eli Hager, Forgiving v. Forgetting: For offenders seeking a new life, a new redemption tool, The Marshall Project (Mar. 17, 2015), https://www.themarshallproject.org /2015/03/17/forgiving-vs-forgetting ................................3

Fed. R. Civ. P. 60 .............................................................................................................................7

Fed. R. Evid. 609(c)(1) ..................................................................................................................16

1 William S. Holdsworth, A History of English Law (3d ed. 1922) ..............................................13

2 William S. Holdsworth, A History of English Law (1922) .........................................................13

Joanna M. Huang, Note, Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 Duke L.J. 131 (2010) .......................................21

W.H. Humbert, The Pardoning Power of the President (1941) ....................................................20


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Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations, ABA Commission on Effective Criminal Sanctions (Jan. 2009) .......................16

Michael Isikoff, Obama commutes dozens of sentences but remains the “Scrooge” of pardons, Yahoo News (July 13, 2015) ................................................................4

Judicial Conference Code of Conduct Adv. Op. 65 (2006) .....................................................21, 22

Anthony M. Kennedy, Associate Justice, U.S. Supreme Court, Speech at the American Bar Association (Aug. 9, 2003), reprinted in 16 Fed. Sent’g Rep. 126 (2003) ................................................................................................................................23

John H. Langbein, Albion’s Fatal Flaws, Past & Present (No. 98) (1983) .............................17, 18

John H. Langbein, Renée Lettow Lerner & Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (2009) ..............17, 18

George Lardner, Jr. & Margaret Colgate Love, Mandatory Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 Fed. Sent’g Rep. 1 (2004) ..........................................................................................................19, 20

Margaret Colgate Love, Jenny Roberts & Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice (2013).................... passim

Margaret Colgate Love, Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code, 2015 Wis. L. Rev. 247 (2009) ...................................................................................................................16

Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 101 (2003) ........................................................................................................................................3, 15, 17

Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169 (2010) ..................................................................................................20, 21

Margaret Love, NACDL Restoration of Rights Resource Project, Chart #4 (June 2015), http://ccresourcecenter.org/wp-content/uploads/2015/07/Chart4.6.27.15.pdf .............................................................................4

Margaret Love, NACDL Restoration of Rights Resource Project, Federal Profile (May 2015), https://www.nacdl.org/uploadedFiles/files/resource_ center/2012_restoration_project/state_ narr_us.pdf ...................................................................4


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Margaret Love, NACDL Restoration of Rights Resource Project, New York Profile (Jan. 2015), https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_ narr_ny.pdf. ...........................................................................................................3

C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695 (2009) ..............................................................................................................11

1 Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (1948) .........................................................................................................17, 18, 23

Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643 (1992) .....................................................6, 8, 12

P.S. Ruckman, Jr., SHOCK: Obama’s Pardon Disaster. The Merciless Term, Pardon Power Blog (Jan. 20, 2013), http://www.pardonpower.com/2013/01/shock-obamas-pardon-disaster-merciless.html ............................................................................................................................4

Rules Relating to Applications for Pardon, Feb. 3, 1898 (on file with Office of the Pardon Attorney, Dep’t of Justice) ..........................................................................................20

Standards for Consideration of Clemency Petitioners, U.S. Dep’t of Justice, Office of the Pardon Attorney, http://www.justice.gov/pardon ...............................................20

The Federalist Papers No. 74 (1788) .............................................................................................22

U.S. Dep’t of Justice, 3 The Attorney General’s Survey of Release Procedures: Pardon (1939) ..........................................................................................................................18

Christopher Uggen, Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism, 65 Am. Soc. Rev. 529 (2000) .........................................................................................................................................2

Christy Visher, Sara Debus-Sherrill & Jennifer Yahner, Justice Policy Ctr., The Urban Institute, Employment after Prison: A Longitudinal Study of Releasees in Three States (2008), available at http://www.urban.org/UploadedPDF/411778_employment_after_prison.pdf ..........................2

Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime, 30 Op. Off. Legal Counsel 104 (2006) ...........................................................15, 17


INTRODUCTION

This Court invited the views of Amica on the Court’s authority to issue “a certificate of

rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this

case. While there is no federal statute that authorizes a court to issue relief styled as a

“certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms,

each perhaps underappreciated but with deep historical roots, by which the Court may recognize

an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s

case.1 The first is by exercising its statutory authority to issue a writ of audita querela, which is

available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a

measure of relief from the collateral consequences of conviction. The second is by

recommending to the President that he grant clemency.

This brief begins with a short introduction giving context to the issues involved here.

Persons convicted of a crime are subject to a wide variety of penalties and restrictions in addition

to the sentence imposed by a court. These so-called “collateral consequences” affect a wide

range of benefits and opportunities, and are frequently more punitive and long-lasting than court-

imposed sanctions like a prison term or fine.2 Collateral consequences may be imposed

automatically by statute or administrative rule, or pursuant to policies that identify a criminal

record as grounds for disqualification. They also take the form of socially-condoned

1 Petitioner requested that the Court expunge her 12-year-old fraud conviction “because of undue hardship in getting and keeping jobs.” According to the NYS Professional Discipline Summary appended to her petition, petitioner’s license as a practical nurse was suspended for two years as a result of her conviction, the second year of suspension stayed, and she was placed on probation for two years. Petitioner does not claim that she was or is prohibited by law from any employment she sought, but asserts that prospective employers have declined to hire her or continue her employment because of her conviction record once it became known to them. See Pet’r’s Reply Mem. 4, Sept. 30, 2015; see also Resp’t’s Br. 2-5, Aug. 28, 2015.

2 For a review of the many types of collateral consequences, see Margaret Colgate Love, Jenny Roberts & Cecelia Klingele, Collateral Consequences of Criminal Convictions: Law, Policy and Practice 35-179 (2013) [hereinafter Collateral Consequences].


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discrimination facilitated by widespread background checks that are frequently authorized or

required by law. While collateral consequences have been a familiar feature of the American

justice system since colonial times, they have become more problematic in the past twenty years

for three reasons: they are more numerous and more severe, they affect more people, and they

are harder to avoid or mitigate. See Love et al., Collateral Consequences, at 4-7. Some

collateral consequences serve a legitimate public safety or regulatory purpose, such as keeping

firearms out of the hands of violent offenders, protecting children or the elderly from persons

with a history of abuse, or barring people convicted of conflict of interest from positions of

public trust. Others can be justified by direct links to a particular crime, such as registration

requirements for sex offenders, driver’s license restrictions for those convicted of serious traffic

offenses, or debarment based upon procurement fraud. But many are applied without regard to

any relationship between crime and penalty.

Collateral consequences have been called a “secret sentence” that consigns its subjects to

“internal exile.” Their racial implications have been analyzed and decried. Their impact on

recidivism rates has been studied by social scientists and pronounced generally malign. Love et

al., Collateral Consequences, at 5 (citations omitted). The negative impact of a criminal record

in the workplace is particularly troublesome from a public policy perspective, since employment

has been shown to be a key factor in reducing recidivism and ensuring positive public safety

outcomes.3

3 See, e.g., Christy Visher, Sara Debus-Sherrill & Jennifer Yahner, Justice Policy Ctr., The Urban

Institute, Employment after Prison: A Longitudinal Study of Releasees in Three States (2008), available at http://www.urban.org/UploadedPDF/411778_employment_after_prison.pdf; Christopher Uggen, Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism, 65 Am. Soc. Rev. 529 (2000). The pervasive effect of collateral consequences on the families and business associates of convicted individuals is seen as a key factor in keeping communities of color economically and socially marginalized. See, e.g., Alec Ewald & Christopher Uggen, The Collateral Effects of Imprisonment on Prisoners, Their Families, and Communities, The Oxford


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Given the perennial difficulty of rolling back collateral consequences in legislatures and

regulating risk-averse employers, it has become a law reform priority to find a reliable way to

avoid or mitigate the impact of a criminal record in appropriate cases or classes of cases.

Historically, this job belonged to the executive through pardons. But since the mid-20th century,

law reformers have been dubious about relying on pardon as a general mechanism for restoring

rights and status, preferring to entrust the courts with systemic measures to ameliorate the impact

of collateral consequences.4 Over the years a number of states have enacted laws giving courts

authority to grant relief from collateral consequences, at the front end of the criminal case

through diversion and deferred adjudication, or after completion of sentence through

expungement, set-aside, or certificates of rehabilitation, variously denominated. Love et al.,

Collateral Consequences, at 424-49. Particularly where more serious offenses are concerned,

the more transparent systemic “forgiving” remedy of judicial certificates of rehabilitation is

coming to be preferred over the “forgetting” remedy of record-sealing for functional as well as

philosophical reasons.5 In New York, sentencing courts have been authorized since the 1970s to

issue certificates evidencing rehabilitation to first felony offenders not sentenced to prison.6

(continued…)

Handbook of Sentencing and Corrections (Joan Petersilia & Kevin R. Reitz eds., 2012). See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

4 See, e.g., Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705 (2003) [hereinafter Clean Slate].

5 See Eli Hager, Forgiving v. Forgetting: For offenders seeking a new life, a new redemption tool, The Marshall Project (Mar. 17, 2015), https://www.themarshallproject.org /2015/03/17/forgiving-vs-forgetting (describing recent state legislation authorizing judicial certificates of restoration of rights and rehabilitation).

6 The two types of certificates authorized by Article 23-A of New York’s Corrections Code are described in Margaret Love, NACDL Restoration of Rights Resource Project, New York Profile, 5-7 (Jan. 2015), https://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_ narr_ny.pdf. These certificates lift any mandatory legal restrictions based upon conviction, and evidence


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Some states (including New York) have also experimented with systemic relief by prohibiting

discrimination based on criminal record, or otherwise limiting the use employers and others may

make of criminal records.7 Love et al., Collateral Consequences, at 358-70.

The federal system has been largely left behind in the current wave of law reforms.

While federal courts for a time had authority to set aside certain minor youthful convictions,

since 1984 they have had no statutory authority to relieve the lingering adverse effects of the

convictions they impose.8 This has generally been thought to leave federal offenders seeking

restoration of rights and status with only the President’s constitutional pardon power to fall back

on.9 Unfortunately, in recent years presidential pardons have significantly decreased in number,

even as demands on the power have increased.10 It is little wonder that, faced with such a bleak

(continued…)

rehabilitation under Article 23-A’s nondiscrimination provisions, as well as under New York’s Human Rights Law. Certificates are also available from the Parole Board to anyone adversely affected by collateral consequences under state law, including individuals with a federal conviction.

7 In the 1970s, two federal courts of appeals held that criminal background checks were a proxy for unlawful discrimination based on race under Title VII of the Civil Rights Act of 1964. See Green v. Missouri Pac. R. Co., 523 F.2d 1290, 1298-99 (8th Cir. 1975); Gregory v. Litton Systems, 472 F.2d 631, 632 (9th Cir. 1972). However, Title VII’s business necessity test has until recently proved an insurmountable hurdle for people with a criminal record seeking to challenge employers’ exclusionary policies. See Love et al., Collateral Consequences, at 348-58.

8 Federal courts do not even have statutory power to seal the record of a criminal case that did not result in conviction, a power enjoyed by all but a handful of state courts. See Margaret Love, NACDL Restoration of Rights Resource Project, Chart #4 (June 2015), http://ccresourcecenter.org/wp-content/uploads/2015/07/Chart4.6.27.15.pdf (50-state survey of laws on expungement, sealing and set-aside). The repeal of the Youth Corrections Act in 1984 left federal courts with only a sliver of authority under the so-called Federal First Offenders Act, 18 U.S.C. § 3607(c), to expunge youthful misdemeanor drug possession charges that did not result in conviction.

9 See Margaret Love, NACDL Restoration of Rights Resource Project, Federal Profile, 4 (May 2015), https://www.nacdl.org/uploadedFiles/files/resource_ center/2012_restoration_project/state_ narr_us.pdf [hereinafter NACDL Federal Profile] (citing United States v. Crowell, 374 F.3d 790, 792-93 (9th Cir. 2004), cert. denied, 543 U.S. 1070 (2005)).

10 See, e.g., Michael Isikoff, Obama commutes dozens of sentences but remains the “Scrooge” of pardons, Yahoo News (July 13, 2015), https://www.yahoo.com/ politics/poised-to-commute-dozens-of-sentences-obama-123815558936.html. President Obama’s 64 pardons in almost 7 years makes him the least generous pardoner in absolute terms of any full-term president since the Civil War, see Clemency


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and unforgiving landscape, federal offenders would look for relief to the courts that sentenced

them. By the same token, it is not surprising that federal courts would be inclined to explore the

extent of their power to deal with the ordinary injustice that has become part and parcel of a

federal criminal prosecution.11 That exploration leads back in time to the earliest years of the

Republic, and even beyond to the English common law roots of federal judicial power.

DISCUSSION

I. THE WRIT OF AUDITA QUERELA UNDER THE ALL WRITS ACT PROVIDES A BASIS FOR RELIEVING THE COLLATERAL CONSEQUENCES OF A CONVICTION

Although seldom used, the common law writ of audita querela provides a basis for courts

to relieve the consequences of an otherwise valid judgment where “an important matter”

concerning the continued enforcement of that judgment arises after its issuance. See Black’s

Law Dictionary 126 (10th ed. 2014) (quoting L.B. Curzon, English Legal History 103 (2d ed.

1979)). Introduced during the reign of Edward III (1327–1377), and preserved to U.S. federal

courts through the 1789 All Writs Act, 28 U.S.C. § 1651(a), audita querela was originally used

by judgment debtors against creditors “to obtain relief against the consequences of [a] judgment

on account of some matter of defense or discharge arising since its rendition.” Black’s Law

Dictionary 120 (5th ed. 1979). But federal and state courts have more recently recognized that

(continued…)

Statistics, U.S. Dep’t of Justice, Office of the Pardon Attorney, http://www.justice.gov/pardon/clemency-statistics (last updated Oct. 2, 2015), and quite possibly since John Adams. See P.S. Ruckman, Jr., SHOCK: Obama’s Pardon Disaster. The Merciless Term, Pardon Power Blog (Jan. 20, 2013), http://www.pardonpower.com/2013/01/shock-obamas-pardon-disaster-merciless.html (containing data collected from copies of State Department clemency warrants found on Microfilm Set T969, National Archives, the Annual Report of the U.S. Attorney General and a CD set of clemency warrants issued by the Office of the Pardon Attorney, U.S. Department of Justice).

11 See, e.g., United States v. Ortero [sic], No. 15 CR 1996-LAB (S.D. Cal. June 9, 2015) (referring matter to the Federal Defender to “pursue [petitioner’s] motion to expunge her conviction if counsel determines that the motion is reasonably supported and is legally authorized”).


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the writ can provide relief in extraordinary cases outside of the judgment debtor setting,

including where a criminal conviction gives rise to a subsequent injustice. See, e.g., United

States v. Ghebreziabher, 701 F.Supp. 115 (E.D. La. 1988) (vacating one of three misdemeanor

convictions by writ of audita querela to permit defendant to qualify for immigration

amnesty); United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988) (vacating decades-old

conviction to enable non-citizen petitioner to qualify for Social Security benefits); see also

United States v. Grajeda-Perez, 727 F. Supp. 1374 (E.D. Wash. 1989) (vacating conviction

under All Writs Act after immigration authorities initiated deportation proceedings despite

court’s issuance of JRAD at sentencing); United States v. Khalaf, 116 F. Supp.2d 210 (D. Mass.

1999) (vacating improperly-counseled conviction by writs of coram nobis and audita querela).12

Audita querela stands apart from coram nobis, a common law writ that provides an

avenue for the correction or vacation of a judgment where a fundamental error affects the

validity and regularity of the proceedings. United States v. Morgan, 346 U.S. 502, 511 (1954);

Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996). Coram nobis attacks “a judgment that was

infirm, for reasons that later came to light, at the time it was rendered,” while audita querela

attacks “a judgment that was correct at the time rendered but which is rendered infirm by matters

which arise after its rendition.” United States v. Reyes, 945 F.2d 862, 863 n.1 (5th Cir. 1991).13

“Put differently, coram nobis attacks the judgment itself, whereas audita querela attacks the

consequences of the judgment.” Ejelonu v. I.N.S., 355 F.3d 539 (6th Cir. 2004) (vacated without

12 See also Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 645-46 (1992) [hereinafter The Revitalization] (exploring audita querela’s potential to “play a constructive and active role in the system of criminal post-conviction remedies in the United States”).

13 See also Balsley v. Commonwealth, 428 S.W.2d 614, 616 (Ky. 1967) (“[C]oram nobis attacks the judgment itself, whereas audita querela may be directed against the enforcement, or further enforcement, of a judgment which when rendered was just and unimpeachable.”), overruled on other grounds, Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003).


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opinion).14

The Federal Rules of Civil Procedure abolished writs of coram nobis and audita querela

in civil proceedings. See Fed. R. Civ. P. 60(e). However, in Morgan, the Supreme Court

explicitly held that the abolition applied only to civil cases, leaving coram nobis available in

criminal cases, with the power to grant such relief coming from the All Writs Act. 346 U.S. at

505 n.4, 506. And since the Court’s ruling in Morgan, federal courts have held that audita

querela remains available for the same reasons15 where it fills a “‘gap[]’ in the current systems of

postconviction relief.” Villafranco v. United States, No. 2:05-CV-368BSJ, 2006 WL 1049114, at

*3 (D. Utah Apr. 18, 2006) (citations omitted).

To be sure, the contours of audita querela have not been clearly defined in case law.

Years ago, the Rules Advisory Committee observed that the “precise relief” available under

audita querela and other common law writs was “shrouded in ancient lore and mystery.” Fed. R.

Civ. P. 60(b) advisory committee notes. And more recently, courts have noted the lack of clarity

surrounding the “factual or legal showing that must be made to obtain issuance of the writ.”

Villafranco, 2006 WL 1049114, at *6. Nevertheless, there appear to be one or more ways in

which audita querela can be applied to mitigate the collateral consequences of a conviction

through, at the very least, a legal objection to the “enforcement, or further enforcement, of a

judgment which when rendered was just and unimpeachable,” Balsley, 428 S.W.2d at 616, and

perhaps even an equitable objection to the same.

14 The Sixth Circuit vacated its judgment after granting the INS’s petition for a rehearing en banc. Order, Ejelonu, No. 01-3928 (6th Cir. July 27, 2004), ECF No. 71. But before the court had the opportunity to rehear the case, the parties stipulated to the dismissal of the appeal, and the court dismissed the petition. Order, Ejelonu, No. 01-3928 (6th Cir. Oct. 18, 2004), ECF No. 86. An earlier entry on the Sixth Circuit’s docket indicated that the parties had reached a settlement agreement. Status Report, Ejelonu, No. 01-3928 (6th Cir. May 20, 2004), ECF No. 62.

15 See, e.g., United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995) (“Though formally abolished in civil cases, the writs of error coram nobis and audita querela remain available in very limited circumstances with respect to criminal convictions.” (internal citations omitted)).


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A. Audita Querela Relief May Be Granted Where There Is a Legal Objection to the Continued Enforcement of a Judgment

While there is a dispute about whether audita querela relief is available on purely

equitable grounds, see infra Section I. B., such relief is available in situations where there is a

legal objection to the continued enforcement of a judgment. See LaPlante, 57 F.3d at 253

(“Audita querela is probably available where there is a legal, as contrasted with an equitable,

objection to a conviction.”). Consistent with the historical usage of the writ, a legal (or

constitutional) objection arising subsequent to and as a result of the conviction provides “some

matter of defense or discharge,” to justify “relief against the consequences of the judgment.” See

Black’s Law Dictionary 120 (5th ed. 1979). Moreover, audita querela’s distinction from coram

nobis demonstrates that the legal objection can arise out of a consequence collateral to the

conviction, though the conviction itself was valid at the time it was entered.16

The question, then, is what type of legal objection might arise subsequent to a conviction

that would justify relief from the judgment’s collateral consequences. Amica is aware of only

two cases in which a court has granted the writ to address what might be deemed a “legal”

objection tied to the collateral consequences of a conviction. See Khalaf, 116 F. Supp. 2d at 217;

Salgado, 692 F. Supp. at 1269-70.17 In Salgado, a petitioner sought relief from a twenty-four-

year-old drug conviction so that he might take advantage of a newly enacted statute under which

he would have been entitled to amnesty but for the conviction, so that he might remain in the

16 See United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (citing Reyes, 945 F.2d at

863 n.1); see also United States v. Fonseca-Martinez, 36 F.3d 62, 64 (9th Cir. 1994) (noting that courts have “granted writs of audita querela to vacate federal criminal convictions . . . in order to protect defendants from adverse collateral consequences.”). A contrary interpretation, requiring that a writ of audita querela be supported by a finding that the conviction itself was flawed, would render one of the two writs superfluous. Robbins, The Revitalization, 6 Geo. Immigr. L.J. at 682 (requiring a legal objection to the conviction is “incorrect as a historical matter”).

17 Cf. Grajeda-Perez, 727 F. Supp. at 1374-75 (vacating judgment under All Writs Act where the executive branch apparently ignored the sentencing court’s JRAD).


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United States and obtain Social Security benefits. Id. at 1270-71. In considering the

applicability of audita querela, the court held that the defense-or-discharge clause in the law

dictionary definition of the writ could be met where a new right is created after the petitioner’s

conviction. Id. at 1269. And because the court determined that Salgado would not be entitled to

the benefit of the right created by the newly enacted statute if he did not receive audita querela

relief, it vacated the judgment at issue. Id. at 1270.18

Under the Salgado court’s reasoning, a legal objection justifying audita querela relief

exists where a newly created statutory right would provide a benefit to the petitioner but for the

conviction at issue.19 However, an even stronger case for audita querela relief could be made

where a subsequent law or regulation strips an individual of rights to which he would otherwise

be entitled, or is otherwise inconsistent with another law or constitutional provision.

For instance, where a conviction-based restriction results in a direct loss of employment,

that restriction could violate the affected person’s due process rights by depriving him of a

fundamental property interest. See Hampton v. Mow Sun Wong, 426 U.S. 88, 102 (1976)

(“[I]neligibility for employment in a major sector of the economy [] is of sufficient significance

to be characterized as a deprivation of an interest in liberty.”); Greene v. McElroy, 360 U.S. 474,

492 (1959) (finding property interest in plaintiff’s employment and liberty interest in his right to

pursue his chosen profession). Equal protection overbreadth challenges to employment and

licensing restrictions have frequently been successful even under a deferential standard of

18 In Khalaf, the other case in which relief was granted on account of a legal objection, the court determined that the petitioner’s defense counsel had provided the petitioner with incorrect information about the immigration consequences of his guilty plea, providing the legal basis for relief under both coram nobis and audita querela. 116 F. Supp. 2d at 216-17.

19 Subsequent courts have criticized the Salgado decision as providing audita querela relief on a purely equitable basis. See, e.g., United States v. Ayala, 894 F.2d 425, 429 (D.C. Cir. 1990). It appears, however, that the Salgado court intended to issue relief on legal, as opposed to equitable, grounds. See Salgado, 692 F. Supp. at 1266 (“The question is whether, equities aside, the Court has authority to take any action.” (emphasis added)).


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rational basis review. See, e.g., Furst v. New York City Transit Authority, 631 F. Supp. 1331,

1338 (E.D.N.Y. 1986) (“Before excluding ex-felons as a class from employment, a municipal

employer must demonstrate some relationship between the commission of a particular felony and

the inability to adequately perform a particular job.”); see also Pordum v. Board of Regents, 491

F.2d 1281, 1287 n.14 (2d Cir. 1974) (exclusion of convicted persons from a profession can be

justified “only after a detailed and particularistic consideration of the relationship between the

person involved and the purpose of exclusion”).20 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.21

Applicable legal or constitutional objections could also arise apart from the employment

context where a collateral consequence is imposed after the fact or otherwise is constitutionally

20 Courts have overturned conviction-based bars to public employment, Kindem v. City of Alameda, 502 F. Supp. 1108, 1111 (N.D. Cal. 1980) (finding that city ban on hiring persons with felony convictions failed to meet even the “low threshold” of rational basis review); restrictions on public contracting, e.g., Lewis v. Alabama Dep’t of Pub. Safety, 831 F. Supp. 824, 827 (M.D. Ala. 1993) (finding that a regulation excluding those convicted of crime of force, violence, or moral turpitude from the state's list of towing contractors was “totally irrational”); the revocation of or the refusal to issue professional licenses, e.g., Miller v. Carter, 547 F.2d 1314 (7th Cir. 1977) (invalidating a Chicago ordinance that permanently barred persons convicted of certain offenses from obtaining chauffeur’s licenses); and laws barring convicted persons from private employment in particular occupations, e.g., Smith v. Fussenich, 440 F. Supp. 1077, 1080 (D. Conn. 1977) (striking down Connecticut’s record-based bar to private detective and security guard work as “simply not constitutionally tailored to promote the State’s interest in eliminating corruption in certain designated occupations”). See Miriam Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L. & Soc’y 18, 20-25 (2005) (collecting cases).

21 In line with the All Writs Act, the availability of audita querela relief in any particular instance must be guided by whether there is other relief available to the petitioner. New York, for example, has one of the strongest anti-discrimination schemes in the country, and has a state law that “limits the ability of employers to make employment decisions adverse to employees or job applicants on the basis of criminal history” under which a petitioner might sue for relief. See Smith v. Bank of Am. Corp., 865 F. Supp. 2d 298, 302-03 (E.D.N.Y. 2012) (citing N.Y. Exec. Law §§ 296(15) & 296(16)). And in certain states, like New York, a petitioner may also be able to obtain a state certificate that would remove a mandatory barrier to employment created by a federal conviction. See supra note 6. Of course, courts must scrutinize whether any alternative, if not already exhausted, would provide the same relief to the petitioner as would be available under audita querela. See, e.g., Salgado, 692 F. Supp. at 1266-67 (noting that a remedy available under the administrative process might allow the petitioner to remain in the country, but without the Social Security benefits he could obtain if his sentence were vacated).


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problematic. For example, recent state supreme court cases in the sex offense registration and

notification context have recognized that there are limitations to the penalties that can be

retroactively imposed on an individual convicted of a crime.22 Similarly, a collateral

consequence could be objectionable where it conflicts with the First or Second Amendment,

including issues arising out of developments in constitutional law post-dating the conviction.23

B. Audita Querela Relief Could Be Available in a Purely Equitable Context Where the Continued Enforcement of a Federal Criminal Judgment Would Be Unjust

Most federal courts have addressed the scope of audita querela in recent years in cases

involving the immigration consequences of conviction, and in this context, the courts of appeal

have consistently held that the writ cannot provide relief on purely equitable grounds.24 The

Second Circuit has alluded to these holdings, but it has not had an opportunity to engage in any

independent analysis of the issue. See United States v. Tablie, 166 F.3d 505, 507 (2d Cir. 1999)

(quoting the Ninth Circuit’s decision in Doe, in which it held, “Equities or gross injustice, in

22 See, e.g., State v. Williams, 129 Ohio St. 3d 344, 952 N.E.2d 1108 (2011) (holding that

amendments to registration requirements imposed on a sex offender were so punitive that application to defendants who committed sex offense prior to the law’s enactment would violate the provision of the Ohio Constitution prohibiting retroactive laws); State v. Letalien, 2009 ME 130, 985 A.2d 4 (2009) (holding that the retroactive application of state’s amended sex offender registration and notification act violated both state and federal constitutions); Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (holding that onerous features of Indiana’s registration law violated the state constitution’s ex post facto provision). See also In re Taylor, 60 Cal. 4th 1019, 343 P.3d 867 (2015) (sex offender residency restrictions violate substantive due process under the California Constitution).

23 See, e.g., Doe v. Prosecutor, Marion Cnty. Ind., 705 F.3d 694, 695 (7th Cir. 2013) (striking down Indiana law that “prohibit[ed] most registered sex offenders from using social networking websites, instant messaging services, and chat programs”); Binderup v. Holder, No. 13-cv-06750, 2014 WL 4764424, at *31 (E.D. Pa. Sept. 25, 2014) (finding the restriction on possessing a firearm in 18 U.S.C. § 922(g)(1) unconstitutional as applied to the plaintiff who, despite a prior criminal conviction, “pose[d] no greater risk of future violent conduct than the average law-abiding citizen”). See also Love et al., Collateral Consequences, at 196-204 (addressing First and Second Amendment challenges to collateral consequences); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695 (2009).

24 See, e.g., Doe v. INS, 120 F.3d 200 (9th Cir. 1997); United States v. Johnson, 962 F.2d 579 (7th Cir. 1992); Reyes, 945 F.2d at 866; United States v. Holder, 936 F.2d 1 (1st Cir. 1991); United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990).


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themselves, will not satisfy [audita querela’s] legal objection requirement and will not provide a

basis for relief”); LaPlante, 57 F.3d at 253 (relying on the First Circuit’s decision in Holder for

the proposition that “[a]udita querela is probably available where there is a legal, as contrasted

with an equitable, objection to a conviction that has arisen subsequent to the conviction”).

However, despite what appears to be the weight of appellate authority, Amica believes

there may be certain cases that would fit within a category described by the Salgado court as

“jealously guarded exceptions” to the general rule against applying audita querela in “mundane”

equitable cases. See Salgado, 692 F. Supp. at 1267. All of the appellate decisions applying that

rule to deny relief involved evidently run of the mine immigration cases presenting no

extraordinary circumstances,25 and in none of those decisions did the court fully address the

writ’s historical scope.

Considering the history of the writ, there is reason to doubt the correctness of the

majority position. The courts that have narrowed the writ’s application have generally followed

the D.C. Circuit’s reasoning in Ayala, which has been criticized as incomplete. See, e.g.,

Ejelonu, 355 F.3d at 546-47 (“We . . . reject the dramatically narrow historical analysis upon

which Ayala and its progeny depend); Robbins, The Revitalization, 6 Geo. Immigr. L.J. at 682

(“Requiring that there be a legal objection to the conviction deviates from the common-law use

of the writ . . . .”).26 Indeed, early scholarly commentary supports the position that audita

25 The First Circuit in Holder declined to disapprove the result in Salgado, contrasting its facts

with those of the case before it. See 936 F. 2d at 4 (“unlike the twenty-four year old conviction in Salgado, the petitioner’s conviction was less than nine years old; the vacation of the conviction was opposed by the government and the government’s interest in maintaining a criminal record of a conviction of mail fraud for longer than nine years is not insubstantial”).

26 In its since-vacated decision, the Sixth Circuit rejected the Ayala court’s “sweeping conclusion” that a “‘pure equity’ variant of audita querela finds no support in the historical definition of the writ.” Ejelonu, 355 F.3d at 545-46. In reaching that decision, the Sixth Circuit clarified that the Supreme Court’s opinion in Humphreys v. Leggett, 50 U.S. 297, 314 (1850), on which the D.C. Circuit relied in finding relief on equitable grounds unavailable, in no way suggested that a legal objection would provide the “only basis for audita querela relief.” Ejelonu, 355 F.3d at 546 (emphasis in original).


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querela has equitable underpinnings. Both Holdsworth and Blackstone viewed audita querela as

a writ of equitable nature.27 And Holdsworth believed that the writ demonstrated that lawyers

“were not indifferent to the claims of abstract justice.” 2 William S. Holdsworth, A History of

English Law 593 (1922).

In line with the views of these scholars, there are a number of early state court cases

supporting the proposition that audita querela relief can be issued on solely equitable grounds.28

Also consistent is the Tenth Circuit’s mid-century definition of the writ, which the Ayala court

did not consider. See Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir.

1946) (“According to its ancient precepts, the writ of audita querela was invented to afford relief

in behalf of one against whom execution had been issued or was about to be issued upon a

judgment, which it would be contrary to justice to allow to be enforced, because of matters

arising subsequent to the rendition thereof.”). Finally, federal district courts have more recently

recognized that audita querela can provide relief on equitable grounds where the continued

enforcement of a judgment in a criminal proceeding would be unjust.29

Thus, while most courts that have considered audita querela’s application in modern

criminal cases have held that relief on purely equitable grounds is unavailable, contrary

27 1 William S. Holdsworth, A History of English Law 224 (3d ed. 1922) (arguing that audita querela is of “essentially equitable character”); 3 William Blackstone, Commentaries on the Laws of England 406 (William D. Lewis ed. 1900)) (describing audita querela as “in the nature of a bill in equity, to be relieved against the oppression of the plaintiff”).

28 See, e.g., Boynton v. Boynton, 186 Mo. App. 713, 172 S.W. 1175, 1177 (1914) (“[T]he writ audita querela lies ‘in the nature of a bill in equity.’” (quoting Blackstone, at 406)); Bryant v. Johnson, 24 Me. 304, 306 (1844) (noting that a writ of audita querela is “in the nature of a bill in equity, to be relieved against the oppression of the plaintiff” (quoting Blackstone, at 406)); Lovejoy v. Webber, 10 Mass. 101, 103 (1813) (“The remedy is said to be in the nature of a bill in equity.” (quoting Blackstone, at 406)).

29 Villafranco, 2006 WL 1049114, at *11 (“[A] court ‘may mitigate a judgment’s collateral consequences through a writ of audita querela issued for equitable reasons, regardless of the presence of a legal defect in the original proceeding.’” (quoting Ejelonu, 355 F.3d at 548)); United States v. Haro, CR No. 85-00612 WJR (C.D. Cal. May 30, 1990) (defining audita querela as a writ “used to vacate a judgment upon a showing that events occurring after the entry of judgment cause the continued existence of the judgment to be contrary to the interests of justice”) (cited in Robbins, The Revitalization, at 683).


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interpretations appear grounded in the writ’s history. On balance, Amica believes audita querela

relief may be appropriate where the totality of the circumstances make continued enforcement of

the judgment, in whole or in part, unjust.

C. A Writ of Audita Querela May Be Issued to Provide Either General or Targeted Relief

Although the writ of audita querela has not been referred to as a “certificate of

rehabilitation,” the writ can and has been used to grant relief similar to that accomplished by

judicial certificates in several states, to recognize an individual’s rehabilitation and relieve the

collateral consequences resulting from the enforcement of an otherwise valid judgment.30 In

some cases, courts have simply vacated the underlying judgment to mitigate its consequences.

See, e.g., Salgado, 692 F. Supp. at 1271 (vacating a judgment that had prevented the petitioner

from qualifying for Social Security benefits); Grajeda-Perez, 727 F. Supp. at 1374-75 (vacating

judgment that subjected individual to deportation despite sentencing court’s JRAD). In others,

courts have crafted an order to relieve the particular collateral consequence considered unjust.

See Ghebreziabher, supra, 701 F.Supp. at 117 (vacating one of three misdemeanor convictions

to permit defendant to qualify for immigration amnesty). Whether a judgment is vacated or the

court otherwise orders that the relevant conviction not be considered, employers or licensors

would not be prohibited from considering the conduct underlying the conviction in making an

employment or licensing determination, just as they are not prohibited from considering the

conduct of an individual who receives a certificate of rehabilitation. But they would be guided in

30 See, e.g., note 6, supra (New York certificates); see also, e.g., 730 Ill. Comp. Stat. Ann. 5/5-

5.5-5 (authorizing courts to remove employment and licensing bars through certificate of good conduct); N.C. Gen. Stat. § 15A-173.2(d) (authorizing court to issue Certificate of Relief to remove collateral sanctions, signify rehabilitation); N.J. Stat. Ann. § 2A:168A-7 (authorizing court to issue certificate evidencing rehabilitation that “suspends certain disabilities, forfeitures or bars to employment or professional licensure.”); Ohio Rev. Code Ann. § 2953.25 (authorizing courts to issue a “certificate of qualification for employment” that removes automatic bars and allows consideration on the merits).


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their exercise of discretion by the court’s judgment that the conviction itself should no longer

constitute a basis for adverse action.

II. THE COURT MAY RECOMMEND A PRESIDENTIAL PARDON TO RESTORE AN OFFENDER’S RIGHTS AND REMOVE THE STIGMA OF CONVICTION

This Court may, in the alternative, issue a certificate of rehabilitation to signify or

underscore its recommendation that the President exercise his power to pardon. A presidential

pardon, if granted before conviction, “prevents . . . the penalties and disabilities consequent upon

conviction from attaching; if granted after conviction, it removes the penalties and disabilities,

and restores him to all his civil rights.” Ex Parte Garland, 71 U.S. 333, 380-81 (1866). Thus, a

presidential pardon “relieves the offender of all punishments, penalties, and disabilities that flow

directly from the conviction.” Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel 160,

161-64, 165-67 (1995). A presidential pardon does not “erase the conviction as a historical fact

or justify the fiction that the pardoned individual did not engage in criminal conduct.” Whether a

Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime, 30 Op. Off.

Legal Counsel 104 (2006).31 However, in addition to removing both federal and state disabilities

flowing from conviction, a pardon “signal[s] that an offender has been rehabilitated.” Love,

Clean Slate, 30 Fordham Urb. L.J. at 1720.

As explained infra sections II. B. and C., there is a long history of judicial

recommendations for executive pardon both in the United States and in England. Historically, it

was common in both countries for judges to recommend executive pardon in deserving cases for

those they had convicted and sentenced. Such recommendations had an especially important role

in cases involving offenders who were poor or lacked political influence. Moreover, the

executive’s exercise of the pardon power, often encouraged by judicial recommendation, helped

31 See also Love, NACDL Federal Profile, at 2 (collecting cases), and Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel at 163-67 (collecting cases).


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spur legal reform. Today, if made in appropriately deserving cases, judicial recommendations

for pardon for offenders who have served their sentences and demonstrated rehabilitation could

encourage reinvigoration of the pardon power and draw attention to the dearth of other remedies

at the federal level. And it could spur reconsideration by the executive and legislative branches

of the post-conviction restrictions and exclusions that “feel[] like punishment to its subjects and

look[] like punishment to the community,” and that frustrate the goal of reintegrating criminal

offenders into society. Margaret Colgate Love, Managing Collateral Consequences in the

Sentencing Process: The Revised Sentencing Articles of the Model Penal Code, 2015 Wis. L.

Rev. 247, 279 (2009).

A. There Are Few Alternatives to Presidential Pardon Under Federal Law to Address the Collateral Consequences of Conviction

In limited, specific areas, federal law recognizes and incorporates by reference state

mechanisms for relief from the collateral consequences of conviction.32 Yet, unlike in many

states, federal law itself contains no general statutory mechanism for restoring rights to federal

offenders or signaling their rehabilitation, with the exception of the writ of audita querela,

discussed supra section I.33 In the absence of such a general federal restoration procedure, a

presidential pardon has traditionally been seen as “the only mechanism available to a federal

32 See Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations,

ABA Commission on Effective Criminal Sanctions (Jan. 2009), at 45 & n.48 [hereinafter Internal Exile] (citing 18 U.S.C. § 921 (a)(20) (firearms); 28 U.S.C. § 1865(b)(5) (federal jury service); 8 U.S.C. § 1227(a)(2)(A)(vi) (immigration)). Federal Rule of Evidence 609(c)(1) states that evidence of a conviction is inadmissible if the conviction has been the subject of “a pardon, . . . certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated,” and the person has not been convicted of a later felony.

33Internal Exile, at 45-46. Some federal statutes provide for administrative removal or waiver of specific, discrete legal disabilities flowing from conviction. E.g., the Secretary of Defense may authorize exceptions to the prohibition on convicted felons enlisting in the military. Id. at 18. And in limited contexts, federal statutes provide for a direct role for judges in removing specific statutory disabilities. See, e.g., 29 U.S.C. § 504 (authorizing federal judges to make factual determinations that certain offenders may serve as leader of a labor organization).


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offender seeking to regain lost rights, or relief from the stigma of conviction.” Love, Clean

Slate, 30 Fordham Urb. L.J. at 1723.

B. Courts Recommended Pardons in English Common Law

It is well established that the Pardon Clause, U.S. Const., Art. II, sect. 2, borrows from

and is informed by the English tradition that predated our Constitution. See United States v.

Wilson, 32 U.S. 150, 160 (1833) (Marshall, C.J.) (“As this power has been exercised from time

immemorial by the executive of that nation whose language is our language, and to whose

judicial institutions ours bear a close resemblance; we adopt their principles respecting the

operation and effect of a pardon.”).34 In 18th century England, a judicial recommendation for a

pardon “was a regular incident of common law criminal procedure.” John H. Langbein, Renée

Lettow Lerner & Bruce P. Smith, History of the Common Law: The Development of Anglo-

American Legal Institutions 627 (2009). Trial judges frequently recommended that the monarch

grant a pardon in capital cases over which they had presided. See id. at 626-28; 1 Leon

Radzinowicz, A History of English Criminal Law and Its Administration from 1750 118

(1948).35

The Crown “regularly deferred to the judges on pardon matters.” John H. Langbein,

Albion’s Fatal Flaws, Past & Present (No. 98), at 109 (1983); see also Radzinowicz, A History

of English Criminal Law, at 120. Indeed, “[w]hen the trial judges initiated pardon requests, the

34 See also Effects of a Presidential Pardon, 19 Op. Off. Legal Counsel at 162 (“the framers drew

their understanding of the scope of the power being granted the Chief Executive” from “the English common law”; “[t]he Pardon Clause of the Constitution was derived from the pardon power held by the King of England at the adoption of the Constitution.”); Whether a Presidential Pardon Expunges Judicial and Executive Branch Records of a Crime, 30 Op. Off. Legal Counsel at 104.

35 At the time, a wide range of crimes carried the death penalty, including forgery, shoplifting, and horse-stealing. In some instances the judge recommended a full pardon—the effect of which “was not merely to prevent the carrying out of the sentence, but to give to the defendant a new capacity, credit, and character”—while in others he recommended a conditional pardon, or commutation. Radzinowicz, A History of English Criminal Law, at 118; see also Langbein et al., History of the Common Law, at 626-28.


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monarch granted them routinely.” Langbein, Albion’s Fatal Flaws, at 109 n.44.36 The convict

or a supporter could also separately petition the monarch for clemency. Id. at 109-10 n.44, and

112. Requesting such recommendations was one of the historical functions of the defendant’s

right of allocution at sentencing, in the age of widespread mandatory capital punishment for all

or most felonies. 1 Joseph Chitty, A Practical Treatise on the Criminal Law *700 (Phila. ed.

1819) (“If [the convict] has nothing to urge in bar, he frequently addresses the court . . . and

desires their intercession with the king . . . .”).

Modern scholars tend to agree that judges’ involvement in the pardon process was for the

most part “strongly principled, based on evidence at trial (and sometimes in post-trial petitions)

regarding the character and circumstances of the offender and offense.” Langbein et al., History

of the Common Law, at 628; see also Langbein, Albion’s Fatal Flaws, at 109 n.44, 111-14

(1983) (surveying scholarship). The main factors cited by courts in recommending that the

Crown grant a pardon included previous good character and that the offender “was driven to

crime by necessity.” Radzinowicz, A History of English Criminal Law, at 115-16.

The flow of judicial requests for pardon, and of pardons granted by the Crown in

response, ultimately helped stimulate legal reform in 19th century England, including the

reduction of capital crimes and the severity of criminal punishment overall. It highlighted the

contrast “between the antiquated criminal law and the modern notions of guilt and punishment

36 “Chief Baron Macdonald described the long-established practice to a parliamentary committee

in 1819” in this way: “‘The judges send what are called “circuit letters” to the secretary of state, stating the places where prisoners have been convicted, their offences, and in general the favourable circumstances that have appeared, that would make a case proper to be recommended to His Majesty, for his pardon; and I do not remember any case in which such pardon was refused when so recommended.’” Langbein, Albion’s Fatal Flaws, at 109-10 n.44 (quoting Report from the Select Committee Appointed to Consider of So Much of the Criminal Law as Relates to Capital Punishment in Felonies, Parliamentary Papers (1819), viii, p. 48).


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then beginning to take shape,” and helped redress that balance. Id. at 113, 116, 131-37.37

C. Courts Have Routinely and Properly Recommended Pardons in the United States

In the United States in the late 18th and early 19th centuries, the President frequently

pardoned convicts “at the behest of a federal judge frustrated by the severity of the penalty he

had been required by law to impose.” George Lardner, Jr. & Margaret Colgate Love, Mandatory

Sentences and Presidential Mercy: The Role of Judges in Pardon Cases, 1790-1850, 16 Fed.

Sent’g Rep. 1 (2004). Defendants often “petition[ed] the sentencing court . . . for clemency,

giving the judge an opportunity to send the petition on to the President with a recommendation.”

Id. at 2.38 As in England, many of the judge-initiated recommendations appear to been made

conscientiously in cases where the offender lacked wealth or influence.39

Recognizing the importance of the sentencing judge’s opinion, presidents rarely acted

without it. President Jefferson stated that “[n]o pardon is granted in any case but on the

recommendation of the judges who sat on the trial & who best know & estimate the degree of the 37 See also U.S. Dep’t of Justice, 3 The Attorney General’s Survey of Release Procedures: Pardon 295-96 (1939) (“[Pardon] has been the tool by which many of the most important reforms in the substantive criminal law have been introduced . . . . This is what happened with self-defense, insanity, and infancy, to mention only three [well known] examples.”).

38 For example, in a notation on a convicted burglar’s pardon petition in 1803, which two judges of the D.C. Circuit recommended to President Jefferson, the judges stated that the punishment of death was too severe for the crime, and that they “consider[ed] it strictly consistent with their duty to recommend to the President the exercise of that power of mitigating the severity of the law which the Constitution vests in him.” Lardner & Love, Mandatory Sentences, at 3.

39 For example, in 1801, D.C. Circuit judges recommended a pardon for two young soldiers who had stolen tobacco and had been sentenced to five stripes and the pillory. D.C. Circuit judges similarly recommended a pardon in 1803 for an “extremely poor” black man who had stolen a goose and received a sentence of 15 stripes, which were inflicted, as well as a fine that he could not pay and for which he was imprisoned. They found it unnecessary for him to have requested a pardon because, as they described it, they understood him to be “ignorant” and “probably without friends.” In 1840, a judge on the U.S. District Court for the District of Indiana recommended a pardon for an aging, impoverished veteran who had stolen money while serving as a postmaster and had received a 10-year mandatory minimum sentence; and in the mid-1840s a judge on the U.S. District Court for the Southern District of New York requested a pardon for a “lad of slender capacity” who had been convicted of stealing mail; the judge did not want the boy to be tarnished for life with a criminal record. The President issued the recommended pardon in each of those cases. Lardner & Love, Mandatory Sentences, at 3-5.


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crime, & character and deportment of the criminal.” Lardner & Love, Mandatory Sentences, at

n.21 (quoting Jefferson). Indeed, to this day, presidents have made it a policy to solicit the

recommendation of the sentencing judge on pardon requests, and have tended to give the judge’s

views significant weight.40 Before 1962, when the Department of Justice was selective about

which requests it sent to the President, it invariably sent those cases recommended by the judge.

Through the years, presidents have been well-served by the involvement of judges in the

clemency process: “[e]nsuring a central role in the pardon process to those officially responsible

for the underlying criminal case gave the president access to information about the case, and in

addition helped insulate the president from political pressure and importuning.” Love, Twilight,

100 J. Crim. L. & Criminology at 1187.

Until recently, presidents granted pardons regularly and systematically. See id. at 1179-

86; Humbert, Pardoning Power, at 125-26. Before 1910, the large majority of pardons vacated

judgments or commuted sentences. See Love, Twilight, 100 J. Crim. L. & Criminology at 1184-

86 and n.65. After the enactment of a federal parole system in 1910, however, pardons were

issued far more frequently “to restore rights to those who had served their sentences and spent a

40 Starting with the first clemency rules signed by President McKinley in 1898, and until the

1960s, the attorney general was required to request the views of the judge and the U.S. attorney in all requests for pardon, and submit an application to the President for action “when either advises in favor of the application.” See, e.g., Rules Relating to Applications for Pardon, Feb. 3, 1898 (on file with Office of the Pardon Attorney, Dep’t of Justice); see also Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, at 1179-80 (2010) [hereinafter Twilight]; W.H. Humbert, The Pardoning Power of the President 125-26 (1941). Beginning with the Kennedy Administration’s clemency rules, pardon petitions were no longer routinely forwarded to the U.S. attorney and judge, although the Department of Justice retains today the practice of soliciting the views of the sentencing judge regarding selected pardon applications, notably those it regards as promising or potentially controversial. See Standards for Consideration of Clemency Petitioners, U.S. Dep’t of Justice, Office of the Pardon Attorney, http://www.justice.gov/pardon (stating that the Department of Justice “routinely requests” the “views and recommendation of the sentencing judge,” and that these are “carefully considered”).


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period of time in the free community.” Id. at 1187-88.41

Presidents since the 1980s have on the whole used the pardon power, for any purpose,

sparingly. Simultaneously, the abolition of parole and the advent of the federal Sentencing

Guidelines resulted in judges imposing sentences they sometimes viewed as unjust in particular

cases—with little chance of any mitigation. That confluence of factors led to a revival of the

well-established but by then mostly-dormant practice of judges initiating recommendations for

presidential pardon.42 See, e.g., Joanna M. Huang, Note, Correcting Mandatory Injustice:

Judicial Recommendation of Executive Clemency, 60 Duke L.J. 131 (2010).

It should be noted that in 2009, the Committee on Codes of Conduct of the Judicial

Conference of the United States issued an advisory opinion regarding “whether upon request by

a prisoner a judge should make a personal recommendation” for pardon or commutation, and

stated its view that this is “normally inadvisable.” Judicial Conference Code of Conduct Adv.

Op. 65 (2009). The Advisory Opinion reasoned that “[b]ecause recommendations sought as

41 In 1958, President Eisenhower’s pardon attorney noted that the pardon was by that time largely

reserved for those who had served their sentence and sought “forgiveness for the purpose of restoring their good names, removing the stigma of conviction, or securing the restoration of such rights as may have been lost by virtue of the convictions.” Love, Twilight, 100 J. Crim. L. & Criminology at 1191. Presidents Franklin Roosevelt, Truman, and Eisenhower issued a collective 6,000 post-sentence pardons, but collectively only 653 commutations. Presidents Kennedy, Johnson, Nixon, Ford, and Carter issued an average of 150 post-sentence pardons each year. Id. at 1191, 1192.

42 In United States v. Harvey, 946 F.2d 1375, 1378 (8th Cir. 1991), the Eighth Circuit agreed with and adopted the district court’s recommendation for presidential commutation for a 24-year old drug offender who had been sentenced to mandatory life in prison. Similarly, in United States v. Angelos, 345 F. Supp. 2d 1227, 1261 (D. Utah 2004), the court was required to sentence to 61 ½ years imprisonment a 24-year old first time offender who had been convicted of dealing marijuana and possessing a firearm in connection with a drug offense, a punishment the court found constitutional but unjust and disproportionate. The court concluded that it would be “entirely proper” for it to make a recommendation for a presidential commutation in the case, given that the President “presumably wants the fullest array of information regarding cases in which a commutation might be appropriate.” Id. And in United States v. McDade, 639 F. Supp. 2d 77 (D.D.C. 2009), the court denied defendant’s motion to vacate a sentence that the court found excessive and disproportionate but had imposed under the then-mandatory Guideline regime. The court recommended presidential commutation. Id. at 86-87. In Harvey, the court instructed the Department of Justice to deliver its opinion to the Pardon Attorney; in Angelos and McDade, the courts ordered the clerk’s office to send the opinion to the Pardon Attorney.


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personal favors would be addressed to the Justice Department, and because that department is a

frequent litigant in the federal courts, the potential exists that undue influence would be felt.”

Id.43

In light of the practices of the pardon power over the course of centuries in England and

the United States, the reasoning of this non-binding Advisory Opinion seems less than

compelling. There is, as discussed supra, a long tradition of sentencing judges recommending

pardon, whether on their own initiative or in response to the request of an applicant, and lately

revived.44 Amica is unaware that such recommendations were or could be considered “personal

favors” sought from the court. Indeed, the recommendations noted above appear to have been

conscientious efforts to bring to the executive’s attention cases especially deserving of the

executive’s mercy, which was built into the constitutional schemes of both countries in large part

to serve as a last line of defense to permit “exceptions in favor of unfortunate guilt.” The

Federalist Papers No. 74, at 446 (Alexander Hamilton) (1788). And while the Crown and the

President frequently accepted judicial recommendations, neither did they appear to feel undue

influence.45 The notion that the Pardon Attorney would be likely to propose (or the President to

grant) clemency in any particular case to win favor for the Department of Justice in unrelated

litigation before the judge who issued a recommendation seems frankly far-fetched.

Moreover, the Advisory Opinion nods to the separation of powers by stating that “[t]he

responsibility for making pardon . . . decisions falls to the executive branch.” Yet it does not say

that judicial recommendations for pardon are impermissible for that reason, and it would have

43 The Advisory Opinion exempts a judge’s transmission of objective information or response to a Justice Department request for information or recommendation.

44 See Schick v. Reed, 419 U.S. 256, 266 (1974) (“‘If a thing has been practiced for two hundred years by common consent, it will need a strong case’ to overturn it.”) (quoting Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922)).

45 Nor does the President today; as yet, no clemency has been granted to the three individuals whose cases are described in note 42, supra.


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been hard pressed to make that case: throughout the heyday of judicial recommendations for

pardon in 18th and 19th century England, it was well understood that the power to pardon rested

in the monarch alone. See Radzinowicz, A History of English Criminal Law, at 129, 130 n.73

(quoting Blackstone and Hume).

D. A Judicial Recommendation for a Presidential Pardon is Potentially Useful and Efficacious

There is no federal statute explicitly authorizing a court to issue a certificate of

rehabilitation or to recommend a pardon.46 And aside from audita querela, Amica is unaware of

authority by which the Court could issue a certificate that would operate as a legal matter to

remove general legal disabilities flowing from conviction. That function has traditionally been

served by the presidential pardon at the federal level. Nevertheless, there is a long tradition of

federal judges recommending pardon, often accompanied by findings and conclusions based on

the facts and circumstances of the particular case.

Such a recommendation in a deserving post-sentence case, accompanied by a finding of

rehabilitation and of specific circumstances by which the conviction is preventing the individual

from providing for his or her family or contributing productively to society, would fit

comfortably within that tradition. It might serve the further, beneficial purpose of encouraging

the reinvigoration of the federal pardon process.47 It could also highlight both the oftentimes-

46 State judges are frequently called upon to make clemency recommendations, but Amica is

aware of only one statute in which they are specifically authorized to initiate a clemency request. See Cal. Penal Code § 4852.13(a) (“if after hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation . . .the court may make an order declaring that the petitioner has been rehabilitated, and recommending that the Governor grant a full pardon to the petitioner”).

47 Cf. Anthony M. Kennedy, Associate Justice, U.S. Supreme Court, Speech at the American Bar Association (Aug. 9, 2003), reprinted in 16 Fed. Sent’g Rep. 126, 128 (2003) (recommending that the bar “consider a recommendation to reinvigorate the pardon process at the state and federal levels” which “of late, seems to have been drained of its moral force”); Dretke v. Haley, 541 U.S. 386, 399 (2004) (Kennedy, J., dissenting) (“Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider.”).


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debilitating impact—on individuals, families, and communities—of collateral consequences of

conviction and the need to provide statutory alternatives to address them.

III. THE SUPREME COURT’S DECISION IN KOKKONEN V. GUARDIAN LIFE INSURANCE CO. OF AMERICA DOES NOT AFFECT AUDITA QUERELA OR A JUDICIAL RECOMMENDATION FOR A PRESIDENTIAL PARDON

As this Court is aware, there is a continuing split in authority over whether the Supreme

Court’s decision in Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994),

bears upon a court’s authority to consider claims seeking the expungement of criminal records on

equitable grounds. Amica respectfully submits that this Court correctly rejected the claim that

Kokkonen strips a district court of any ability it may have to issue such relief. See Doe v. United

States, No. 14-MC-1412, 2015 WL 2452613, at *4 n.16 (E.D.N.Y. May 21, 2015). A court’s

expungement of the record of a criminal conviction issued by that court is materially different

from enforcing the terms of a settlement agreement entered into by the parties to a dispute. Id.

While the latter essentially amounts to a new suit for breach of contract, the former falls squarely

within the purpose for which the Kokkonen Court suggested ancillary jurisdiction may be

asserted: “to enable a court to function successfully, that is, to manage its proceedings, vindicate

its authority, and effectuate its decrees.” Kokkonen, 511 U.S. at 380-81.

But in any event, Kokkonen presents no hurdle to the options for potential relief discussed

above, as they differ materially from the equitable expungement of a criminal record pursuant to

a court’s ancillary jurisdiction. In particular, audita querela, through the All Writs Act, provides

an independent statutory basis for a court to supply a remedy by mitigating the collateral

consequences of a conviction where those consequences are objectionable as a matter of law, or

potentially, where the continued enforcement would, as matter of equity, be contrary to justice.

And, although separate from any sort of direct relief, this Court would be similarly unconstrained

by Kokkonen in recommending Doe’s candidacy for a presidential pardon. Historically, judicial


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clemency recommendations were neither uncommon nor discouraged.

CONCLUSION

For the foregoing reasons, Amica believes that the Court has authority to issue a writ of

audita querela in extraordinary post-conviction circumstances that would have the effect of

certifying an individual’s rehabilitation and relieving collateral consequences. In addition, in a

deserving case, the Court can and should recommend a presidential pardon to alleviate collateral

consequences of conviction, based upon a finding of rehabilitation. Whether this case is an

appropriate one for issuance of either a writ or recommendation is a matter within the discretion

of this Court.

Dated: October 8, 2015 OF COUNSEL: Leigh A. Krahenbuhl Jones Day 77 W. Wacker Drive Chicago, IL 60601.1692

Respectfully Submitted, Jones Day

By: /s/ Todd R. Geremia Todd R. Geremia 222 East 41st Street New York, NY 10017.6702 Lawrence D. Rosenberg (Pro hac vice admission pending) Paul V. Lettow (Pro hac vice admission pending) 51 Louisiana Avenue, N.W. Washington, D.C. 20001.2113 Attorneys for Amica Curiae Margaret Colgate Love


CERTIFICATE OF SERVICE

I certify that on October 8, 2015, a true and correct copy of the foregoing was caused to

be served through the Court’s CM/ECF system on all counsel of record:

Mitchell Alan Golub, Attorney for Petitioner Jane Doe

David K. Kessler, Attorney for Respondent United States

/s/ Todd R. Geremia Todd R. Geremia An attorney for Margaret Colgate Love


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