Forgive Us Our Trespasses: The Need for Federal Expungement Legislation

By Mouzon, Fruqan | The University of Memphis Law Review, Fall 2008 | Go to article overview

Forgive Us Our Trespasses: The Need for Federal Expungement Legislation


Mouzon, Fruqan, The University of Memphis Law Review


I. INTRODUCTION ..................................................................... 2

II. THE NEED FOR A SOLUTION TO PROBLEMS FACED BY REHABILITATED EX-OFFENDERS ..................................... 7

III. FEDERAL COURTS' USE OF GENERAL STATUTES AND THEORIES TO SUPPORT AWARDING AN EXPUNGEMENT IN AN APPROPRIATE CASE .......................... 13

A. The All Writs Act, 28 U.S.C. § 1651 ........................... 15

IV. USE OF THE COURTS' INHERENT EQUITABLE POWERS TO CONSIDER EXPUNGEMENT PETITIONS ............................ 23

V. STATE EXPUNGEMENT LEGISLATION .................................. 31

VI. PROPOSAL FOR FEDERAL LEGISLATION .............................. 35

VII. CONCLUSION ....................................................................... 45

"When asked by an offender for forgiveness, one should forgive with a sincere mind and a willing spirit . . . forgiveness is natural to the seed of Israel."1 (MISHNEH TORAH, Laws of Teshuvah 2:10).

"And whenever you stand praying, if you have anything against anyone, forgive him, that your Father in heaven may forgive you your trespasses."2 Mark 11:25 (New King James)).

"But if people do defend themselves when they are wronged, nothing can be held against them for doing that. . . . But if someone is steadfast and forgives, that is the most resolute course to follow."3 (Qur'an 42: 41, 43).

I. INTRODUCTION

Millions of Americans suffer a life-long handicap as a result of a one-time lapse in judgment. Indeed, a single conviction or even an arrest without conviction-can forever affect an individual's voting rights, employment opportunities, and social standing. A failure to forgive can cause irreparable damage not only to the individual but also to the whole society.

Knowledge of a person's criminal past, while it can certainly provide fair and needed insight into that person's character, may also be counterproductive in that it can create an obstacle impeding a changed man's efforts at reformation and rehabilitation.4 The mere existence of a criminal history can produce assumptions of past dishonesty and future untrustworthiness in the minds of all those aware of that history.5 Those assumptions often create substantial obstacles to acquiring, among other things, employment and housing.6 In addition, some ex-offenders are disqualified-at least temporarily-from obtaining federal loans or grants for post- secondary education.7 Even government programs designed to assist the poor, like food stamps, are unavailable to some ex- offenders,8 making rehabilitation far more arduous.9 Ex-offenders also risk disqualification from military service. In other words, society's attitude toward those with criminal histories can create a predictable cycle, where denials of access to education, housing, and employment often lead to criminal recidivism.11 Federal and state legislatures,12 as well as not-for-profit organizations and private foundations,13 have brainstormed ways to improve the odds of successful re-entry. Providing incentives for employers to hire ex- offenders, prohibiting discrimination against ex-offenders, creating or improving prison job training programs and substance abuse treatment, and discharge planning for prisoners prior to release are all suggestions for positive steps.14 It is clear that these and other re-entry ideas will be the subject of much debate in years to come. Expungement15 should be part of this debate. There are many bar- riers to re-entry that are caused simply by the stigma16 attached to having been an offender, regardless of how long ago the infraction occurred, its severity, or the circumstances surrounding its com- mission. This Article discusses the total removal of that stigma through expungement for most non- violent first offenders.17

Most states have addressed some of the problems facing state ex-offenders through legislation, but rehabilitated federal exoffenders are not so fortunate. …

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