Tag: criminal practice

California’s Proposition 47 and collateral consequences: Part I (sentencing consequences)

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. It is amazing that just a few months ago, a defendant with two prior felony drug possessions in state court, and currently charged with drug distribution in federal court, faced a mandatory sentence of life imprisonment.  Now he can have those California priors reduced to misdemeanors, and then dismissed, so that, under certain circumstances, they can no longer be used to enhance the federal sentence.  Generally, convictions that are set-aside for reasons not involving innocence or errors of law will still result in criminal history points.  Counsel might argue in resentencing that the reduction from felony to misdemeanor supports a finding that the conviction over-represents the defendant’s criminal history. People whose federal sentences were enhanced in the past by crimes that are now misdemeanors under state law may be able to seek relief, after their state convictions are set aside. Custis v. United States, 511 U.S. 485, 497 (1994).    Johnson v. United States, 544 U.S. 295, 303 (2005), cited both Custis and Daniels v. United States, 532 U.S. 374, 381 (2001), for the proposition that “a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated.” Finally, Prop 47 may offer support to those seeking clemency.  When a person’s record of multiple felonies is suddenly transformed into multiple misdemeanors, the case for commutation of sentence becomes even more convincing. The Proposition provides relief to anyone convicted in the past of a wide range of property and drug crimes, as long as the person does not have a “disqualifying prior.”  Disqualifying priors include offenses requiring sex offender registration, and specified violent offenses.  For example, the crime of 2nd degree burglary/commercial burglary where the value of the property did not exceed $950, becomes a new misdemeanor called “shoplifting.”   If the value of a forgery or theft involves less than $950, the crime becomes a misdemeanor.  Similar treatment is given to felony insufficient check funds convictions, and receiving stolen property.  Simple possession of heroin, “concentrated cannabis,” and methamphetamine, once charged as felonies, are now misdemeanors. Simply by going to court to have their felony charges converted to misdemeanors, people can end up with a criminal record that looks very different, and has a very different effect. There are a huge number of eligible Proposition 47 cases out there.  For example, by the Friday following the November 4th election, San Diego County Public Defenders had submitted nearly 5000 petitions for conversion of felonies to misdemeanors.  There are a lot of resources already on the web, for example http://www.safeandjust.org/recordchange.  More will doubtless be appearing in the days ahead. (Ed. Note:  The impact of Prop 47 in the civil context, notably on employment and licensing opportunities, and on immigration status, will be the subject of Part II of this article.)  Read more

Playing nice in criminal court: “Crashing the Misdemeanor System”

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. Roberts addresses the literature on, and practice of, criminal defense triage whereby lawyers in public defense organizations give felonies representational priority over so-called minor charges.  She rightly points out that such practice is born ultimately out of a lingering belief that misdemeanors are just not that serious, and takes pains to highlight the myriad disastrous consequences that can flow from a misdemeanor charge.  Further, with misdemeanor arrests far outpacing felonies, it is in those cases where the majority of people experience the criminal justice system. She argues persuasively that public defense offices should actually consider prioritizing their misdemeanor practice.  After all, in the hurly burly of the typical misdemeanor court, the chances for a defense attorney to uncover, let alone discuss, devastating attendant consequences are remote.  Felony practice, on the other hand, tends to run more slowly and thereby incorporates greater potential and opportunities for defense counsel to surface collateral consequences. Roberts forces institutional defense attorneys to confront a painful reality – the present, and ever-growing, system of mass arrests for minor crimes can only exist if the defense cooperates and acquiesces in advising guilty pleas, early and often.  She zeroes in specifically on the quick and dirty guilty plea; the practice know derisively, but accurately, as “meet ‘em, greet ‘em and plead ‘em.”  She contends that if defense attorneys paid greater attention to these cases, they would in turn be less likely to advise the accused to plead guilty at the arraignment or initial appearance, and more people would opt to eschew a guilty plea and opt for a trial.  Besides better protecting the accused from potential negative consequences of a plea, the attorney would also finally and truly be providing effective assistance and living up to ethical standards. She offers specific suggestions for how public defender offices can actualize a heightened approach to misdemeanor practice.  She proposes focusing on public order offenses and/or developing specialized practice groups to develop expertise and effectively and fully litigate the myriad constitutional issues present, and heretofore usually overlooked, in charges like Disorderly Conduct.  Roberts advises offices to adopt policies that, for example, explicitly frown upon practices like “meet, greet, and plead,” and to collect and analyze data on police practices in these cases that have never before made it on to the radar screen. Roberts is not naïve.  She recognizes how hard it is for entrenched offices and practices to change, and that prosecutors or judges will likely react harshly if suddenly the defense bar stops playing nicely with others.  Nevertheless, she convincingly argues that pushing back against the misdemeanor practice status quo would overload, or “crash,” the system.  This in turn would force police officers and their superiors to think twice about arrests, prosecutors to think harder about cases they forward to court, judges to think more carefully and thoroughly about how they adjudicate, and legislators to ponder what acts should or should not be criminalized.  In the final analysis, crashing the current misdemeanor system will result in huge savings in financial and human terms. Read more

Dismissed charges not always the best outcome?

Which is a better outcome for a defendant in a criminal case: a) dismissal of all charges; or b) finding of guilt with probation or fine? Although most defendants and their attorneys would without hesitation choose option a), the choice is not always clear cut for some young defendants in in at least one Midwestern state. So why might a former client say that “I can’t get a job because the charges against me were dismissed“? Or ask “ Why didn’t my lawyer tell me to plead guilty?” How is there a potential advantage of a conviction compared to dismissal? In Wisconsin, computerized court records make it easy for the public, including prospective employers, to see public records of court cases, including charges that have been dismissed. However, a statute (Wis. Stat. sec. 973.015) allows for certain records to be sealed, depending upon the defendant’s age and the classification of the crime. However, the statute does not allow for sealing records in cases that resulted in dismissal, so they remain accessible through computerized searches. Therefore, if a defendant is greatly concerned about the potential effect of the record on future employment (or other effect on reputation), an expunged record may be preferable to a public record of a dismissed charge. The defense attorney should at least be aware of the options and explain them to the client, rather than assuming which option the client would prefer. This example also shows that it is critically important for defense lawyers to be aware of the relief that may be available to avoid or mitigate collateral consequences. Defense attorneys are becoming increasingly aware that for some defendants, collateral (or civil) consequences may be more important than the direct penalties ordered in the criminal case. Although the counter-intuitive situation described above may be unique to Wisconsin, the broader need to consider collateral consequences is universal. Unfortunately, public defenders in many jurisdictions have neither the resources nor the statutory authority to provide representation on civil issues like immigration, housing, employment, or government benefits. However, defenders increasingly strive within legal and budgetary limitations to provide holistic representation, which includes sensitivity and responsiveness to client concerns transcending the criminal penalties that they face. Ordinarily clients want to resolve cases without incarceration. An avid hunter, however, may take jail time in March if the only other option precludes venison in November. By knowing the client’s priorities, defense attorneys can best explore and recommend options to the client’s benefit. More commonly, defense attorneys can use knowledge of potential consequences to negotiate persuasively for reduction or dismissal of charges. Often, prosecutors and judges are not interested in adverse collateral consequences for defendants. An alternate disposition may address the concerns of the prosecutor without having the same collateral consequences as the original charge. In collaboration with Margaret Love, her research team, and the Colorado Public Defender, the Wisconsin State Public Defender has prepared some state-specific materials on collateral consequences. Although they are not directly applicable in the other 49 or in Washington, D.C., perhaps they can serve as a template for similar materials in your jurisdiction (particularly, the interview form, which is the last item below): * Civil Consequences of Conviction: The Impact of Criminal Records under Wisconsin      Law * Felony Convictions and Employment (Wisconsin Law) * Client Employment Interview Form Read more