Tag: criminal practice

Wisconsin high court holds youthful offenders entitled to “a fresh start”

The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence. Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request. In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged. Criteria for expungement Defendant Hemp had been granted expungement for a felony offense of possession of marijuana with intent to deliver, and had successfully completed his probation term.  However, local officials had not filed the necessary papers to enable the court to expunge his conviction record.  Hemp subsequently filed a petition for expungement (to require the court to act upon its earlier, condition order granting expungement). However, between his completion of probation and his follow-up regarding expungement, Hemp had been charged with possession of marijuana, and the prosecutor charged this offense as a felony because of the previous marijuana conviction.  Hemp’s attorney on the new charge recognized that by effectuating the earlier expungement order, Hemp could get the new charge reduced to a misdemeanor for possession, first offense. The lower court, its sympathy for the defendant likely diminished by his pending charge, ruled that the defendant had the responsibility for providing the sentencing court with proof that he had successfully completed probation and that his delay in doing so provided a basis to deny expungement. The Wisconsin Supreme Court disagreed.  It interpreted the statute to require of the defendant only that he complete probation successfully (and that he not be convicted of another offense during the probation term), but not that he also complete the administrative tasks of either the Department of Corrections or court personnel.  Because Hemp had satisfied the statutory criteria, he was automatically entitled to have the previous expungement order effectuated. Expungement erases conviction, not just court record The Hemp opinion also supports a broad interpretation of the legal effect of expungement in Wisconsin: the court stated that the statute “offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming law-abiding and productive members of the community.” Expungement allows individual defendants a chance to move past the barriers that can be created by a criminal record by giving them “an incentive to rehabilitate,” which, in turn, “promotes the public’s safety” [citations omitted].  Indeed, expungement allows “offenders to . . . present themselves to the world—including future employers – unmarked by past wrongdoing.” This “unmarked by past wrongdoing” statement helps resolve ambiguity regarding whether expungement means that the conviction no longer exists or simply that court records are no longer publicly accessible. The unanimous decision provides support for a job applicant answering “no” to a question about prior convictions if his or her only conviction has been expunged.  At the same time, a cautious applicant may decide to disclose the expunged conviction voluntarily to some employers, since expungement does not affect law enforcement records and certain employers may learn of the underlying legal history through a background check.  Nonetheless, the Hemp decision not only benefits the individual defendant, but also supports the policy of exempting young defendants from many of the consequences that accompany a criminal conviction.   Read more

“Justice Is Swift as Petty Crimes Clog Courts”

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 counsel in felonies must be extended to all defendants, no matter how seemingly minor the charges, if the accused stood to be sentenced to any period of incarceration. Nowadays, it is increasingly common for defendants to be represented by counsel at their initial appearance, even when charged with minor misdemeanors.  But even with lawyers, the Wall Street Journal study shows that there is (still) “scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” In New York City, where I practice, the assembly line of guilty pleas drones on.  Even with the presence of counsel, the practice of quick and dirty guilty pleas persists in what has come to be known derisively, but accurately, as meet ‘em, greet ‘em, and plead ‘em.  While the presence of lawyers is a necessary condition it is certainly not sufficient – attention must be paid to what those lawyers actually do (or fail to do). The swift guilty plea must be condemned for multiple reasons.  For starters, at the time of an arraignment plea, none of the institutional players — prosecutor, defense attorney or judge — know much of anything about the accused or any actual victims.  At the moment of the plea, there has been virtually no fact, let alone legal, investigation, and no discovery of a meaningful sort. Further, in the present era of quality-of-life or “Broken Windows” policing, where courts are clogged with massive numbers of arrests for minor crimes and offenses, rapid and rampant guilty pleas serve to shield police conduct and the constitutionality of their arrests from any kind of substantial scrutiny. But perhaps the biggest concern with the prevalence of speedy guilty pleas is the ever-growing host of negative consequences that attach to and flow from those pleas.  Even a guilty plea to a statutorily designated non-criminal offense or violation can lead to deportation, eviction, loss of various licenses, inability to obtain loans, etc.  In a recent NPR story, Robin Steinberg of the Bronx Defenders argues that because collateral consequences are so numerous and their application so uncertain, “indigent defendants need access to subject-matter experts in areas like family law and immigration to know how the laws will play out in their individual circumstances, before coming to the plea-bargaining table and before the laws are imposed.” With misdemeanor cases far outpacing felonies (the National Center for State Courts puts the percentage at 70%-80% of the annual criminal docket nationally), it is in the Criminal Court where most New Yorkers experience the criminal justice system.  As advocates of procedural justice argue, the treatment people receive in the courts will go a long way to affecting how they act in the future.  It is an obvious truth that being shuttled through an opaque and uncaring system does not engender trust and respect for the Criminal Court. The Wall Street Journal, by shining a light on the way that millions of people are treated in misdemeanor court, does a great service to all people interested in promoting fairness and decency in our courts.  Now the question becomes whether those with the power to change the way things are done have the corresponding will to do so.   Read more

“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”

Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances.  As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level.  As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing.  Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions.  For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform. Here is the abstract: Some of the most severe collateral consequences of criminal convictions are imposed through city and county ordinances and policies. This Article offers the first in-depth examination of these municipal policies, including permits and licensing ordinances, registration and exclusion zones, third-party background-check requirements, and local hiring policies. Some municipal ordinances, such as residential restrictions on sex offenders, impose far harsher sanctions than their state counterparts, effectively banishing certain individuals from the community. In addition, municipal licensing ordinances limit access to occupations — such as street vending, operating a food cart, or driving a taxicab — that offer valuable entrepreneurial opportunities to individuals with criminal convictions. Often invisible to defendants at the time of sentencing, these local policies have been used as a way to exile “undesirables” by effectively barring them from living, working, or participating in public life in their communities. This Article offers suggestions for legislative reform to address the patchwork of collateral consequences that can lead to exile at the local level. States may pass laws preempting municipal restrictions, or municipalities can lead the way by adopting collateral consequences ordinances (such as the one unanimously passed in New Haven, Connecticut) that mitigate the impact of these restrictions by setting uniform standards and informing attorneys and the public. We expect to post a more extensive discussion and analysis of Professor Meek’s article as soon as we can. In addition, the Center board has been discussing the possibility of developing a template that could be used by local jurisdictions to create their own on-line catalogue of rules and policies governing consideration of conviction in employment, licensing, housing, and other benefits and opportunities controlled at the local level.  Optimally, this template would be compatible with and permit interaction with the one used to compile the NICCC inventory, so that defense lawyers and others could go to one place to find all of the consequences potentially relevant to their situation.  We expect to post a link to the NICCC as soon as certain technical problems with that resource have been ironed out. Read more

Ohio’s on-line inventory of collateral consequences – a useful tool for defense lawyers

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. Those consequences could include denial of a teaching license and ineligibility for employment in a school.   Even if she received a comparatively light sentence for the offense, the simple fact of conviction would likely destroy Kelley’s hopes of becoming a teacher.  CIVICC would also show the same consequences flowing from any conviction for felony Tampering with Records, the conviction that Kelley ultimately received. In contrast, counsel would learn that a conviction for Falsification — the misdemeanor offense specifically identified on the grandparent affidavit form — would trigger “only” 192 collateral consequences, and the worst threat to Kelley’s teaching ambitions would be the right of licensing officials to question her about her criminal record.  The stark contrast between these long-term outcomes would provoke at minimum a serious attorney-client discussion about priorities.   The knowledge could significantly influence defense strategy and perhaps lead to a better outcome — not only for Kelley but for the state as well, as research has shown that secure employment offers by far the best assurance that an ex-offender will go on to live a law-abiding life. The CIVICC database is an ongoing project of the Ohio Justice & Policy Center in partnership with the Ohio Public Defender’s office.  The project began in 2010 to address a constellation of related circumstances that Ohio shares with other states across the country:  The explosion of criminal convictions in recent decades has produced a statewide population where 1 in 6 Ohioans has a felony or misdemeanor conviction record. Collateral consequences have proliferated correspondingly: CIVICC presently contains 844 and counting, nearly all enacted in the last 40 years. 95% of convictions are the result of guilty pleas, entered by defendants who have been informed of the potential criminal penalties but have no clue of the long-term collateral consequences they will confront when the sentence is complete. The cumulative economic effects of mass incarceration and lifelong collateral consequences have finally begun to capture attention from policymakers across the political spectrum. The collateral consequences in Ohio law are scattered throughout the statutory and administrative codes with no discernible order or system.  Anyone searching the codes for the collateral consequences of a particular conviction — whether a defense lawyer, a returning citizen, a workforce development professional or a social service volunteer — will spend hours if not days winding through the labyrinth of potentially applicable laws and rules. In response to these multiple concerns, CIVICC was created to collect in one searchable online database all the collateral consequences of conviction that exist in Ohio statutes.  More than that, its “relational database” structure enables users to see which collateral consequences are linked to which offenses under Ohio law.  Starting with an “Offense search,” the user can look up a particular criminal offense or type of offense, and find out what civil penalties that offense will trigger in addition to the court-imposed sentence.  Starting with an “Impact search,” the user can look up a particular right, privilege or field of endeavor, and find out what types of criminal conviction might block access to it. The CIVICC database first went online experimentally in March 2011, with information about 56 “civil impacts” of conviction.  It now contains 844 consequences, of which more than 300 have been newly enacted and/or amended since March, 2011.  CIVICC’s design and features have similarly evolved to meet the practical needs of its widely varied users. Certain essential characteristics do not change, however.  Among them are the following: CIVICC provides a narrative description of each consequence, which is searchable in an “Impact Keyword” query.  Many descriptions include citations to the multiple statutes and regulations that must be read together in order to understand a single consequence. CIVICC’s searchable content identifies the type of case outcome required to trigger each consequence. This is particularly valuable in Ohio, whose collateral consequence statutes vary enormously in their reach.  Some collateral consequences can be triggered by an arrest or indictment, some by participation in a diversion program, and some by an offense that has been officially “sealed” or “expunged.”  Juvenile defenders value the ability to use the Impact keyword “juvenile” and find the consequences that can be triggered specifically by a juvenile adjudication. CIVICC search results provide a link to the full text each offense statute and each consequence statute, plus additional links to certain exceptions found in Ohio statutes and regulations.  This is possible because Ohio provides online public access to the official text of its statutes and regulations via Lawriter. CIVICC is designed to be easy to use, but each page has a link to the User Guide/FAQs which can also be downloaded for offline use. OJPC first envisioned CIVICC as a one-year project but after almost five years it is still under construction, continually expanding with both new and updated content even as it handles over one thousand public queries each month.  While CIVICC users are anonymous, system reports show that queries come from community organizations, employers, courts, government agencies, public library users, public defenders, treatment providers, law firms and academic institutions, both within and outside Ohio.  Such reports echo what OJPC has learned directly from the users themselves:  that CIVICC is being used in a wide range of settings for purposes that include: identifying a particular applicable collateral consequences, as required when applying for a Certificate of Achievement and Employability (“CAE”) or Certificate for Qualification for Employment (“CQE”) under recently enacted Ohio laws; finding the range of collateral consequences that may result from a particular kind of criminal case outcome; identifying all the collateral consequences related to a particular occupation or field of study; examining the scope and effects of particular legislative enactments; and evaluating and comparing the types of collateral consequences that affect various segments of the community. News and inquiries from CIVICC users feed OJPC’s determination make continual improvements in CIVICC’s scope and functionality.  Encouragement comes especially from OJPC’s current collaboration with community college faculty, administrators and students; and from our work with Ohio’s statewide Ex-Offender Reentry Coalition, which involves state agencies and community organizations in advancing social and economic success for individuals with criminal records and for their families and communities. OJPC provides training about CIVICC and collateral consequences to user groups of all sizes and stripes, and we welcome inquiries and insights from all sources.  The website’s Contact page provides conventional contact information plus a direct e-mail link for user questions.  Try CIVICC at http://CIVICCOhio.org, and let us know what you think!   Read more

Reduced charge more harmful than original?

An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records.  The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database.  Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles. Now the Wisconsin Court of Appeals has held that the court may not seal the record of a non-criminal violation.  Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014).  The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions. For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible.  If she had been convicted of drug possession or fraud she might have been able to close the book on this episode. Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges). The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records.  For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed. Read more