The New York Times recently published A Federal Judge’s New Model for Forgiveness. It is a story focused on a problem, or at least a perceived problem: person commits crime, person serves sentence, person re-enters society, and person faces fact that past actions have consequences. There is some perception that such a person cannot rehabilitate with that "record" and that therefore American society must adjust to afford such a person with relief from her/his past.
This is a criminal conviction story. But the circumstances of living with one's past are not limited to criminal activity. There are many stories of people who lost a job (or worse) because of statements or pictures on social media, what we might call "mistakes." Some businesses and schools spend a great deal examining the past of applicants. The presence of photos, statements, and references on social media may diminish or eliminate opportunities for some.
But this NY Times story focuses on a nurse who was convicted for "faking a car accident for the insurance payments." A judge sentenced her to "15 months in prison." Somehow the case came back before the judge many years later. The article is less than clear, but it sounds like "Jane Doe" filed a motion, asking the judge to "to expunge her conviction from the record."
Jane Doe has carried the burden of her conviction with her. According to the story, Jane Doe does not like answering the job application questions about criminal history. She said that these questions intimidate her. She concluded in time that “if you put ‘yes’ on there, that’s it. You are not getting that job.” The fault for this is laid at the feet of the employer, who is perceived as wrong for asking about prior convictions; instead of the applicant being perceived as wrong for having broken the law.
There are perhaps other questions on applications that are intimidating. Should an employer ask why an applicant left a previous job? Or, whether the applicant completed high school? Or, whether the applicant has a driver's license? Or, whether the applicant has ever had a professional license revoked? Are these questions asked to intimidate applicants or to evaluate perceived fitness for the job?
It is noteworthy that in Florida one might be criminally prosecuted for providing false information in applying for a job; remember Hector and Brock.
The Judge in Jane Doe's case determined that expungement was not appropriate, finding "expungement was reserved for 'unusual or extreme' cases." But, he then drafted "an extraordinary 31-page opinion released on March 7," in which he "gave her what amounted to a voucher of good character - he called it a 'federal certificate of rehabilitation.'" It is worth noting that "no such certificate exists under federal law;" the judge made it up.
Though "the certificate has no legal effect," the Judge believes that Ms. Doe can provide this certificate with her job applications and resumes, and that it may send “a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community.” More concisely stated, the judge who sentenced the person has now found the individual fit. The "system" or process has not. The judge is essentially vouching for the rehabilitation of a convicted criminal.
There is great security in being a federal judge in America. The framers of the United States Constitution had concerns for the independence of the judiciary. Though the Constitution says little about the judicial branch, it does provide that federal judge’s salary may not be diminished during her or his service, and their appointment lasts during “good behavior.” For the most part, this means that the federal bench is a lifetime appointment or lasts as long as the judge decides to stay.
Days after making up this certificate of rehabilitation, the federal judge retired from the bench. There may also be security in being on the verge of retirement?
Not so in state court. The state court judges, and executive branch judges like the Judges of Compensation Claims are bound by the Florida Code of Judicial Conduct. There is a similar code for federal judges. These Codes are divided into "Canons," which are sections. The Florida Code is interpreted by the Judicial Ethics Advisory Committee, the Judicial Qualification Commission and Florida Supreme Court.
The Florida Code states (italics are quoted):
Canon 2(A): A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 2(B): A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.
Interpreting Canon 2(B), the Florida Judicial Ethics Advisory Committee has concluded that a
Judge may not write a letter of recommendation for a friend’s application . . . for a real estate license, where the friend has a prior misdemeanor arrest and the purpose of the letter is to serve as additional information attesting to the friend’s honesty and good character and reputation. Opinion 2013-08
Similarly, the Committee has concluded
A judge may not write a letter of recommendation or commendation on behalf of a person previously convicted of a felony who is seeking a pardon from the Governor because it appears to lend the prestige of judicial office to advance the private interests of the petitioner and it appears to be written testimony as to character. Opinion 2010-29.
And
A Judge may not prepare an affidavit of good character, even pursuant to a subpoena duces tecum without deposition, on behalf of a lawyer pending disciplinary action with the Florida Bar. Opinion 2004-22.
And
A Judge may not write a letter of recommendation to the Clemency Board and the Board of Bar Examiners on behalf of an individual seeking a pardon and admission to the Bar Exam. Opinion 1982-15.
And
Judge may not voluntarily write a letter to Parole and Probation Commission, identifying self as a county judge, and recommending inmate for parole. Opinion 1977-17.
But,
A Judge may write character reference letter on behalf of person applying for a job, when judge has contact with person in official capacity. Opinion 1975-30.
That seems a broad exception; "contact" and "in an official capacity." Perhaps it is broad enough to allow a judge to act as a personal reference for anyone that the judge meets through her/his judicial activities? So, if a judge meets someone in the Courthouse coffee shop, might the judge author a recommendation letter?
Perhaps the preclusion on recommendation letters discussed above is more narrow and applies to such letters when addressed to someone considering an adjudication of some form, that is parole commissions, other judges, The Florida Bar? And,
A Judge may write recommendation letter based on judge’s actual knowledge and personal observation of individual’s relevant credentials. Opinion 1994-45.
But,
A judge should be sensitive to possible abuse of the prestige of office. Commentary to Canon 2B.
In 1994, the Florida Supreme Court concluded that judicial letterhead should not be used for a judge’s personal business. However, if otherwise permitted to write a letter of recommendation, the use of such letterhead was not forbidden. In Re Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994). Also that year, the Court quoted a broader prohibition: “it is a violation of Canon 2 of the Code of Judicial Conduct for a judge to write a character witness letter for any individual on official court stationery.” In Re Abel, 632 S02d 600 (Fla. 1994). The recommendation letter topic is anything but clear.
A judge should be sensitive to possible abuse of the prestige of office. Commentary to Canon 2B.
In 1994, the Florida Supreme Court concluded that judicial letterhead should not be used for a judge’s personal business. However, if otherwise permitted to write a letter of recommendation, the use of such letterhead was not forbidden. In Re Code of Judicial Conduct, 643 So.2d 1037 (Fla. 1994). Also that year, the Court quoted a broader prohibition: “it is a violation of Canon 2 of the Code of Judicial Conduct for a judge to write a character witness letter for any individual on official court stationery.” In Re Abel, 632 S02d 600 (Fla. 1994). The recommendation letter topic is anything but clear.
The federal Judge in this story did not write a recommendation letter. But in fairness, that is perhaps a distinction without a difference. The intent of this Judge’s order/certificate is clear, to convey his endorsement of Doe, as rehabilitated, "a voucher of good character." More than doing so on his court letterhead, the judge did so in a certificate as an official action of a court.
In making such a conclusion of rehabilitation or endorsement, a Florida judge might be accused of violating Canon 2, and lending the prestige of judicial office to advance the private interests of Doe. A Florida judge might face explaining how, and how well, she/he knows someone for whom such a recommendation letter is written, and whether that is sufficient "contact" to justify lending the prestige of judicial office to that person.
There is an undercurrent contributing to this criminal rehabilitation discussion. Some have a perception that past activity should not haunt people indefinitely. Should people get a second chance? If they should, would that include a defined process and transparency? That is, a process that is published, standardized, and equally applied to all such persons?
These were my initial thoughts when a friend emailed me this NY Times story. Some of the federal Judge's analysis is in the article. It focused on Doe's circumstances at the time she committed the crime and on her lack of criminal convictions since her incarceration. As she has not been caught doing anything, or more aptly convicted of anything, since her release from prison, the judge draws the inference that she has been on the straight and narrow and is rehabilitated.
The article goes on to say that "the struggle to find stable, secure employment is one of the most common and damaging effects of a criminal record." In response, multiple governments "have enacted so-called ban-the-box laws." These prevent "employers from asking about an applicant’s criminal record until later in the hiring process." This is a sentiment shared by the President, who has "ordered federal agencies to follow suit." This leads to some other thoughts.
First, we hear a great deal about "judicial independence." We hear complaints in the media about "activist judges." There has been a fair amount of legislative effort in recent years to take discretion away from judges in America. We see it in criminal sentencing guidelines and in mandatory sentence legislation.
For example, back in the day, people stopped for DUI were given tickets and sent on their way. The people lobbied for change, and legislatures changed laws over a good many years. Today, at least in Florida, DUI will get you arrested, detained, and charged. Today in Florida, DUI convictions have significant consequences, and the law leaves the trial judge little or no discretion in some respects. These kinds of legislative constraints have come at least in part at the hands of people's perceptions of judicial discretion and or activism.
If government wants to change how ex-convicts are perceived, and whether they must be forthright about their past, there would be those who would argue that legislative bodies like senates, houses, boards, and commissions are perhaps the best venue for such discussion and changes - legislatively. These people would argue that judges should not make things up to suit their personal perceptions and feelings.
The second thought that occurred to me is the employer's liability and access to information. When an employee commits a wrong, intentionally or negligently, there can be consequences for the employer: vicarious liability for actions, allegations of negligent hiring or supervision, and more. Should an employer be allowed to know about an applicant's criminal background? The tenor of the NY Times story seems to suggest that this information would perhaps not be withheld entirely, but would not be available "until later in the hiring process." How much later?
What is the cost to the business of investing time in the process of reviewing applications, conducting interviews, and discussing candidates? If there is a red flag that would preclude hiring, is it better to know this on the face of the application or "later in the hiring process." Perhaps that conflict in interests could be addressed with more specific questions about the past instead of the general "ever been convicted?" Something like "ever been convicted of _________." Perhaps parameters would be of assistance, such as "been convicted in the last ___ years."
Perhaps the legislative body (the governments for municipalities cited in the Times) that precludes employers from asking such questions might also provide those businesses with some level of immunity from liability for the actions of those who are hired? If employers cannot inquire into the past of employees, should they be held responsible for those employee's actions? Notably, when the prohibition on asking such questions occurs through executive fiat there will certainly be no such accompanying protections for the employer.
This is an interesting topic. In the words of the friend who sent it to me, "we do need to address what happens after they do their time.'" That may be debatable. Some might find the current state of affairs, in which those who commit crimes live with the consequences of their actions. But if the societies' consensus sentiment is that we should preclude businesses from asking about criminal past, and the Times suggests that such a sentiment is either common or is becoming so, then the consequences (intended or not) might also bear some discussion and debate?
When legislative bodies make changes, there are processes. Bills and resolutions and ordinances are proposed, discussed in public settings, perhaps covered in media, and there are votes cast by those who were elected by the people. Legislative change is a democratic process which takes place in the public eye. Statutes and ordinances are then interpreted by judges and applied to the facts and circumstances faced by particular individuals. In fairness, legislative action is as made-up as this federal judge's action. But, it is made up in a public debate by bodies elected by the people.
When one is inclined to lament legislative restriction on judicial discretion, or when one perceives legislative action as an "attack" on judicial independence, one might well remember that some judges make things up. Make things up without the transparency of public debate. Make things up perhaps without standards or processes in place to equally apply to all.