CCRC board member Jack Chin, Professor of Law at U.C. Davis, has recently posted two important articles about collateral consequences. One is a general overview of various recent proposals to reform the way collateral consequences are treated in the justice system, which will be published as part of a report on scholarship on criminal justice reform edited by Professor Eric Luna. The other argues that under the Grand Jury Clause of the Constitution certain federal misdemeanors may only be prosecuted by indictment because of the severe collateral consequences they carry. Chin and his co-author John Ormonde propose that “[m]ore thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge,” thereby sparing less serious offenders from the stigma of a criminal record. Because federal law makes no provision for sealing or expunging nonconviction records, even dismissed charges will appear on a rap sheet. Read more
In a recent national study of case processing in the nation’s misdemeanor courts, Wall Street Journal reporters Gary Fields and John Emschwiller document how “blindingly swift” justice is for the “millions of Americans charged each year with misdemeanor crimes”:
In Florida, misdemeanor courts routinely disposed of cases in three minutes or less, usually with a guilty plea, according to a 2011 National Association of Criminal Defense Lawyers study. In Detroit, court statistics show, a district judge on an average day has over 100 misdemeanor cases on his or her docket–or one every four minutes. In Miami, public defenders often hardly have time to introduce themselves to their misdemeanor clients before the cases are over. . . . In a Houston courtroom one day recently, defendants–sometimes individually, sometimes in groups of up to nine . . . , pleaded guilty, received their sentences and got a “good luck” from the judge in less than 30 seconds.
It appears that very little has changed in the forty years since the Supreme Court in Argersinger v. Hamlin bemoaned the assembly line that characterized the processing of misdemeanor offenses at that time. The Court noted:
Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials. Suddenly it becomes clear that, for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” (emphasis added)
The Argersinger Court noted that uncounseled defendants were pleading guilty, often at their initial appearance before a judge, and that there were harmful consequences that flowed from convictions of even so-called minor crimes. To remedy the national crisis in misdemeanor courts that existed even in the 1970s, the Court held that the Gideon right to Read more
Kelley Williams-Bolar was a single mother in Akron Ohio, a teacher’s aide who was studying to become a teacher herself. Her story made headlines in 2011, when she was accused of misusing her father’s home address to enroll her two young daughters in a public school they were not entitled to attend. After her own home was burglarized, Kelley had enrolled the girls in their grandfather’s school district, so they could spend each afternoon after school safely at their grandfather’s house. To make this possible she had signed a “grandparent affidavit” saying that the girls lived with their grandfather. The new school district ultimately rejected the affidavit, and she withdrew the girls from their new school at the end of the school year.
Ohio’s “grandparent affidavit” form contains a printed warning, advising that anyone who submits a false affidavit can be charged with “Falsification, a first degree misdemeanor.” But that warning gave no hint of what would actually happen to Kelley. Eighteen months after her daughters left the new school, the district attorney charged Kelley with felony Grand Theft, claiming she had “stolen” tens of thousands of dollars’ worth of tuition for her children.
Particularly given Kelley’s career aspiration to be a teacher, her defense lawyer could have made good use of a new online resource called CIVICC (Civil Impacts of Criminal Convictions), a computerized compendium of state collateral consequences linked to the crimes that trigger them. (Kelley’s felony conviction was eventually reduced to a misdemeanor by Governor John Kasich, high level intervention that cannot be counted on to substitute for effective advocacy.)
At the CIVICC website, counsel in a case like Kelley’s could run a quick search using the keyword “theft,” and learn right away that conviction on the Grand Theft charge would expose her to 509 possible collateral consequences (“civil impacts”) under Ohio law, burdens she would bear long after her criminal sentence was complete.
In the general election on November 4, 2014, California voters approved Proposition 47 with almost 60% of the vote. The Proposition will impact a wide range of sentences in California courts, and in the federal courts as well. A number of crimes that could be, and often were, charged in California as felonies, such as commercial burglary, forgery, grand theft, and certain drug crimes, will now be charged as misdemeanors, so that their effect on a person’s criminal history will be substantially diminished. A whole range of state felony drug offenses that could result in enhanced sentences in federal drug cases, even life imprisonment, or career offender status under the United States Sentencing Guidelines, have overnight become relatively harmless misdemeanors.
Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences. This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced. Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison). These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case. The record can then be expunged.
The importance of this retroactive effect of the new law cannot be over-estimated. While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community. For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.
As the Supreme Court recently acknowledged in Lafler v. Cooper (2012), American criminal justice “is for the most part a system of pleas, not a system of trials.” Nowhere is that statement truer than in the lower courts, where millions of misdemeanor arrests are resolved, or, to use the lingo of the criminal court, “disposed of,” without even a whiff of a trial.
In a provocative New York Times Op-Ed, “Go to Trial: Crash the Justice System,” Michelle Alexander raised the prospect of organizing people to refuse to plea bargain. Professor Jenny Roberts takes a cue from Alexander and manages to be even more rebellious. In Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013), she urges much more specifically that defense attorneys focus their energy on taking down extant misdemeanor systems that are best characterized as guilty plea mills.
Roberts argues that “the most minor misdemeanor conviction has serious implications for so many people,” and bemoans the fact that nevertheless most misdemeanors are given short shrift by all institutional players — judges, prosecutors and defense attorneys alike. Her article is a clarion call for defense attorneys to reimagine, refocus and reinvigorate their misdemeanor practice, especially in an era of massive arrests for minor crimes made popular by Broken Windows, or quality-of-life, policing.