A timely new article from CCRC board member Nora V. Demleitner, law professor at Washington and Lee University, considers the central role of prosecutors in determining who goes to jail and prison and how long they stay there. Demleitner reviews—as a “case study of prosecutorial authority”—prosecutors’ actions to reduce confined populations during the COVID-19 crisis. While prosecutors’ key role in charging and sentencing at the front end of a criminal case is well-established, in ordinary times their influence in its later stages, including in prison release decisions, is not so obvious. Professor Demleitner shows how the pandemic “highlights the tools prosecutors have at their disposal and how they can directly impact the size of the criminal justice system.” This in turn leads her to consider how “prosecutorial thinking” focused on public safety as opposed to public health “increasingly influences other branches of government” even in the midst of a pandemic.
Professor Demleitner’s article, “State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform,” will be published in the April 2020 issue of the Federal Sentencing Reporter. The abstract is included below:
The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record. North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice. Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history.
As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered. In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies. North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record.
In 2019, the following additional states have enacted new restrictions on the occupational licensing process: Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia. All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18. These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report. They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”), which is now underway.
Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters. The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences.
On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes. In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication. They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed. Sounds good right? Not for a non-citizen. In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings. See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2). However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences. See Padilla v. Kentucky, 559 U.S. 356 (2010).
The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed. See Colo. Rev. Stat. § 18-1-410.5. Read more
In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences. The two articles together mark a major contribution to the literature. Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief. Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance. However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences. As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”
In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply. In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.
New Jersey Attorney General Gurbir Grewal recently issued new Guidance reminding municipal prosecutors that they cannot categorically refuse to prosecute marijuana cases while the Legislature is considering proposals relating to decriminalization. That said, the guidance reminds prosecutors that they have considerable discretion when deciding which maijuana cases to pursue. While this advice is fairly standard stuff, the second half of the guidance document is a fascinating glimpse into prosecutorial decision-making as it relates to collateral consequences. It follows a growing scholarly and legal consensus calling for opening the “black box” that is the prosecutorial mindset. For too long, the thought-processes behind prosecutorial decisions have eluded the public eye.
In essence, the guidance advises that the decision whether or not to bring charges may depend upon a defendant’s exposure to severe collateral consequences if convicted. Recognizing that prosecutors should consider collateral consequences brings their obligations closer to those imposed on defense attorneys by the Supreme Court eight years ago in Padilla v. Kentucky. Padilla required defense attorneys to know the immigration consequences faced by their clients or risk being labeled constitutionally ineffective. Many defense attorneys, public defenders, and legal aid organizations have devoted substantial effort to ensuring their clients know about housing, employment, educational, and other consequences that might attach to a conviction.
But any public defender can tell you that reliance on overburdened defense and legal aid attorneys to warn defendants and educate prosecutors about collateral consequences is bound to frustrate the goal of increasing systemic literacy. The value of the new AG guidance is in placing a burden on prosecutors to discover and take into account the effect of collateral consequences in particular cases in deciding whether or not to prosecute.
Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral. In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity. She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.” She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.”
Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review. In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.” They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.”
It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion. Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion.
Below are the abstracts for these two articles:
A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction. The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences. [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]
In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief. As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences. The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.
On March 28, Congresswoman Eleanor Holmes Norton (D-DC) introduced a bill that would give the District of Columbia exclusive authority, like states and U.S. territories, to grant clemency for criminal convictions under its laws. The District of Columbia Home Rule Clemency Act is part of Norton’s “Free and Equal D.C.” series. While D.C. law appears to give the mayor authority to grant clemency (D.C. Code 1–301.76), the U.S. Department of Justice (DOJ) has opined that the mayor’s clemency authority, if any, is very narrow, and that the President of the United States has authority to grant clemency in all D.C. criminal cases and exclusive authority for D.C. felonies. Under current practice, clemency petitions for D.C. convictions, like federal convictions, are submitted to the Department of Justice for the President’s consideration. In Norton’s bill, clemency includes pardons, reprieves, or commutations of sentence.
In introducing the bill, Norton said “The District, like states and territories, should have full control of its local criminal justice system, the most basic responsibility of local government. Since the D.C. Council has the authority to enact local laws, District officials are in the best position to grant clemency for local law convictions . . . . This bill is an important step in establishing further autonomy for the District in its own local affairs.” Norton’s full introductory statement is below. The text of H.R. 1765 has not yet been posted; we link the text of an earlier bill introduced by Congresswoman Norton in January 2016.
A former University of Maryland student who pled guilty last April to throwing a punch that resulted in the death of a fellow student, has been allowed the benefit of a nonconviction disposition that will likely result in the expungement of his record. According to a report in the Washington Post,
Prince George’s County Judge Albert W. Northrop ordered the manslaughter conviction of Arasp Biparva in the 2014 killing of Jack Godfrey vacated. The judge also granted Biparva probation before judgment, which means the charges can later be expunged from public records.
The modified sentence will help Biparva, 25, as he finds a job in accounting, according to his attorney.
“Currently the conviction will interfere with the application process and prevent Mr. Biparva from obtaining the certifications he needs to advance his career,” his attorney, Barry Helfand, said in a request for the modified sentence.
This piece follows up on the CCRC practice resource titled “Federal sentencing and collateral consequences,” available here.
Should federal courts be required to take collateral consequences into account when they impose a sentence – or should they at least be permitted to consider them? Should courts also be authorized to provide federal defendants some relief from collateral consequences after their sentences have been served? Some courts are already doing this without specific authorization, as was pointed out in a letter sent last week to the U.S. Sentencing Commission by one of its advisory committees, urging that the Commission take up the subject of collateral consequencdes as a priority for the coming year.
The Practitioners Advisory Group (PAG) urged the Commission to recognize collateral consequences as presenting issues of concern to federal courts for which it should provide some guidance:
The collateral consequences of conviction – specifically, the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court’s judgment – can frequently be the most important aspect of punishment from a defendant’s perspective. In a number of recent cases, courts have has imposed a more lenient sentence in consideration of the severe collateral consequences the defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences that persist long after the sentence has been fully served. We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. We urge the Commission to take this matter under advisement in the months ahead, looking toward a hearing in the spring.