2449

Relief by Reduction of the Length of Disability

Disqualified individuals convicted after October 12, 1984, may petition the Federal or state sentencing court to reduce the statutory length of disability (thirteen years after date of sentencing or end of imprisonment, whichever is later) to a lesser period which may not be less than three years after such conviction or end of imprisonment, whichever is later. Because a reduction of the length of disability has the same general ameliorative effect following the reduced period of disability as an exemption from disability in a particular prohibited position or full restoration of citizenship rights by pardon or its equivalent, it is the position of the Department of Justice that the methods of relief be viewed similarly in terms of the burden of persuasion on the person seeking relief notwithstanding the absence of any articulated statutory requirement for granting a reduction of the length of disability. Therefore, the government should argue that the convicted petitioner bears the burden of demonstrating that he or she has been rehabilitated at the time of the application and can be trusted to not endanger the organization in which he or she seeks a position. See Nass v. Local 348, Warehouse Production, Sales and Services Employees, 503 F. Supp. 217 (E.D.N.Y. 1980), aff'd without opinion, 657 F.2d 264 (2d Cir. 1981) (relief from the disqualification by full restoration of citizenship rights requires a finding of prior rehabilitation before the disability will be lifted). The 1984 statutory amendment is silent as to the timing of a motion for reduction of the length of disability addressed to the "sentencing court." In contrast, each statute states that relief by exemption or full restoration of citizenship rights may be considered at any time "prior to the end of such period" of disability. Although this statutory construction appears to support the position that a reduction of the length of disability may be granted only at the time of sentencing, the legislative history suggests that a disqualified person should be permitted to apply for a reduction of the length of disability at any time during the period of disqualification, especially where a person is convicted of a disabling offense prior to the commencement of service in a prohibited capacity and is without notice of the disability. The legislative history also indicates that relief by reduction of the length of disability which is sought after sentencing would be available only in rare circumstances. The former Chairman of the Senate Committee on Labor and Human Resources explained that while the amendment increased the period of disqualification, relief by reduction of the length of disability was included to accommodate the rare occasions where a (thirteen) year ban might be considered too harsh. For example, at the time of his conviction of a disqualifying crime, an individual might not be a union member or might not have given any thought to the ramifications of his act with regard to holding office in a union or with a benefit plan. If he were to serve his sentence and subsequently obtain a job which would lead to election to union office, a (thirteen) year ban might be unnecessarily rigid. In such rare circumstances, the judge is given the discretion to reduce the disqualification period to no less than (three) years. Remarks of Senator Orrin Hatch, 128 Cong.Rec. 32446 (1982); material in parentheses added. It should be noted that in some cases Federal and state sentencing courts may enter orders which purport to reduce the length of the employment disability to a period which ends on a date prior to the date of the court's order. However, a reduction order may not be given retrospective effect if the result would be to extinguish criminal liability for a willful or intentional violation of 29 U.S.C. §§ 504 or 1111, respectively. Cf. Younger v. Harris, 401 U.S. 37 (1971) (holding that the principles of comity and federalism preclude Federal courts from enjoining state criminal prosecutions except under extraordinary circumstances) and 28 U.S.C.A. § 2283. In Presser v. Brennan, 389 F. Supp. 808 (N.D. Ohio 1975), the court held that the statutory application of the ERISA disability to a convicted individual did not require a pre-disqualification hearing, but proceeded to grant some declaratory relief with respect to prohibited service prior to the date of the court's declaration. However, limited retrospective relief was given only after the court had determined, in accordance with the government's position in the case, that the convicted individual had not intentionally violated the statute prior to the date of the court's determination by serving in a prohibited capacity with knowledge of his employment disability. [cited in Criminal Resource Manual 2446; USAM 9-138.040; USAM 9-138.100; USAM 9-138.130]