Opinion
97 CR 715 (ILG).
February 13, 2003
MEMORANDUM AND ORDER
On September 9, 1997, the defendant Tashawnda James, pleaded guilty to one count of a four count indictment and was sentenced by this court to three years of probation for conspiring to import cocaine into the United States in violation of 21 U.S.C. § 963 and 960(b)(3). A condition of her sentence was that she complete her high school education. The defendant had no prior criminal record before this conviction.
Defendant now seeks to have her criminal record expunged as she is attempting to obtain housing assistance for her and her son as well as find employment and feels that prospective employers have declined to offer her a job once they learn about her conviction. That the law cannot condone expungement in these circumstances is clear. Although district courts are possessed of the inherent equitable power to order expungement of criminal records, the Second Circuit has cautioned that the power to order expungement should be exercised with great caution. United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977) (quoting United States v. Rosen, 343 F. Supp. 804, 807 (S.D.N.Y. 1972)). "The determination of whether expungement is appropriate requires a case-by-case balancing of the defendant's interest in avoiding the harm the record causes against the government's interest in effective law enforcement which the preservation of criminal records furthers. United States v. McFadzean, No. 93 CR 25, 1999 U.S. Dist. LEXIS 16971 at **3-4 (S.D.N.Y. 1995) ("The acquisition, preservation and dissemination of criminal records fulfills the compelling public need for an effective criminal identification procedure, thereby promoting effective law enforcement."); United States v. Morelli, No. 91 Crim. 639, 1999 U.S. Dist. LEXIS 9736 at *2-3 (S.D.N.Y. June 30, 1999) ("The policies underlying retention of criminal records encompass not only the immediate needs of law enforcement for identification and reference in future criminal proceedings, but also punishment and deterrence, as well as public informational needs, as appropriate."); United States v. Seibel, No. M-65, 1999 U.S. Dist. LEXIS 13400 at *3 (Aug. 31, 1999 S.D.N.Y.).
Generally, expungement has been reserved for cases in which an arrest was unconstitutional, an arrest was made for the purpose of harassment (such as in the case of civil rights workers), a determination of probable cause was impossible because arrests were made en masse, or the records have been misused by the government. Id. (citing Schnitzer, 567 F.2d at 540; see also United States v. Morelli, 1999 U.S. Dist. LEXIS 9736 at *5 ("The remedy of expungement is limited to cases involving a charge that there was later determined to be meritless or that was never adjudicated, or where there is proof of government misconduct, or where the law is declared invalid."); United States v. Doe, 36 F. Supp.2d 143 (S.D.N.Y. 1999) (rejecting request by defendant convicted 20 years earlier under Youth Corrections Act to expunge record of conviction; "While expunging a record may be an appropriate remedy where an arrest is unconstitutional, it does not seem appropriate where a conviction was valid when entered.") (citation omitted)). As Judge Haight has noted in considering a motion for expungement of criminal records, "expungement is an extreme, and rare, remedy. It is not commonly granted even in cases in which the defendant was acquitted of the charges, much less where the defendant has been convicted by a jury or pleaded guilty, as here. `In the face of the public's compelling need to have an accurate criminal identification system, courts have rarely granted motions to expunge arrest records, let alone conviction records. This is true even where the arrests at issue resulted in acquittals or even dismissal of the charges.'" McFadzean, 199 U.S. Dist. LEXIS at **7-8 (citing United States v. Sherman, 782 F. Supp. 866, 868 (S.D.N.Y. 1991); see also United States v. Bryde, 914 F. Supp. 38, 39 (N.D.N.Y. 1996) ("courts rarely have granted motions to expunge arrest records and even more rarely have granted motions to expunge conviction records"); Morelli, 1999 U.S. Dist. LEXIS 9736 at *3 (the standard governing expungement has "developed principally, if not exclusively, to deal with expungement requests concerning records of arrests that did not lead to valid convictions.").
Here, as in McFadzean, plaintiff has not met the stringent standard needed to obtain expungement of her criminal record. She does not challenge the validity of her arrest or conviction. She does not contend that the government based her arrest upon an unconstitutional statute or that the government misused her records in any way. In fact, she has not even professed her own innocence. Rather, plaintiff simply states in her motion that she faces difficulties as a result of her criminal record. While the Court is sympathetic to those difficulties, particularly their effect on plaintiff's ability to provide her family with needed financial support, it is also mindful that the law does not permit expungement based on such circumstances. Where the only harm alleged is to plaintiff's professional reputation, the expungement motion must be denied, as that harm does not provide a ground upon which this Court can rely in granting a motion to expunge. See, e.g., Seibel, 1999 U.S. Dist. LEXIS 13400 at *3 (denying expungement motion where sole basis for motion is harm to reputation); Slansky v. White, No. 96 CV 2338, 1996 U.S. Dist. LEXIS 7906 (S.D.N.Y. June 10, 1996) (denying expungement motion where harm alleged is potential adverse effect on employment); In re Farkas, 783 F. Supp. 102, 103 (E.D.N.Y. 1992) (same).
For the reasons set forth above, plaintiff's motion for expungement must be denied. Unfortunately for plaintiff, if there is some force that will permit her to move on and put the lingering effects of her conviction behind her, it is not the law, but rather the willingness of an employer to display enough understanding and wisdom to recognize that defendant has paid her debt to society. While the law does not go so far as to erase the records of a youthful lapse in judgment, neither does it envision that she will be forever branded as a pariah and precluded from fully contributing to the fabric of society. As this Court has observed once before, it is not the task of the district court to "substitute its own judgment for that of the NASD, or for that of the state bar examiners, the pharmacist licensing board, or any other body charged with maintaining the standards of a vocation. It is they who must evaluate the character and qualifications of potential and present members of their respective professions, in each case applying their own particular criteria to the facts before them." In re Farkas, 783 F. Supp. at 104. To merely pay lip service, however, to the tenet of "paying one's debt to society" and to continue to regard that debt as never to be absolved is socially self-defeating and morally wanting. Despite having found no basis upon which to grant plaintiff's motion for expungement, this Court is nevertheless prompted to express the same hope it did in Farkas, that prospective employers will not look askance upon Ms. James.
SO ORDERED.