Tag: featured

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

Federal regulation of criminal background checking

Twenty years ago, criminal record background checks for employment were rare. Today, the easy accessibility of criminal records on the Internet, and the post-September 11th culture of heightened scrutiny, have contributed to a sharp increase in background checks of job candidates.  If you’re applying for jobs in most industries, expect employers to ask about a criminal record at some point in the hiring process—and expect many of them to run a background check on you. It’s a harsh reality for an estimated one in four U.S. adults who have some type of criminal record.  Unfortunately, any involvement with the criminal justice system—even having minor or old offenses—could become a job obstacle for these 70 million Americans. Even if you’ve avoided a run-in with the law, you could still find yourself being unfairly screened out for a job due to an erroneous background check report. With thousands of private background check companies across the country that have varying levels of reliable information, inaccuracies in these reports are far too common. Unknown to many job candidates, private background check companies and the employers relying on their reports are regulated by a federal consumer protection law called the Fair Credit Reporting Act (FCRA).  Although more well-known in the credit report context, FCRA also applies to companies that produce criminal background check information, and gives job-seekers a number of protections. Here are a few highlights of FCRA as applied to criminal record information reports: Background check companies may not report arrests older than seven years and must have procedures to ensure accuracy of the information provided to employers. Employers must obtain authorization from the job applicant before getting the report. Before the background check report can be used to deny a job, the employer must provide a copy of the report to the job-seeker. The job applicant also has the right to dispute the accuracy of the report. Despite the letter of the law, advocates representing workers have identified background check reports that are riddled with errors. The consequences are devastating for workers unfairly denied job opportunities because of an inaccurate record, particularly in a tight labor market.  Some common errors include the reporting criminal record information of another person with a similar name, failure to include the final outcome of an arrest, reporting a stale arrest record, or reporting an item multiple times giving the appearance of a lengthy record.  The National Consumer Law Center’s Broken Records captures many of the common problems. FCRA is enforced administratively by the Federal Trade Commission, but “The ‘Wild West’ of Employment Background Checks” hasn’t been tamed.  With limited regulatory accountability, advocates have turned to litigation against some of the largest background check companies for FCRA violations.  Advocates have also urged the federal Consumer Financial Protection Bureau to take an interest in this industry because of the impact of widespread noncompliance with FCRA on consumers. Another promising strategy is to tackle the issue at the state level.  States could enact limitations on reporting of certain criminal record information, take steps to increase accuracy of records, and ensure disposition information is processed efficiently.  For example, California’s Investigative Consumer Reporting Agencies Act (ICRAA) restricts the reporting of convictions older than seven years. And recently, Indiana made regulation of background checkers a part of its comprehensive 2013 expungement and sealing scheme.  For more ideas on a state reform agenda, see this report.   CCRC STAFF NOTE:  The provisions of the Federal Fair Credit Reporting Act are described in greater detail, and court cases collected, by Sharon Dietrich in §§5:14 to 5:31 of Love, et al., Collateral Consequences of Criminal Convictions (West/NACDL 2013).     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

Minnesota project examines how different life would be with a criminal record

One in four people in the United States has a criminal record. It’s a record used by the vast majority of employers, legislators, landlords, and licensing boards to craft policies and determine the character of an individual.  In our electronic and data age, it typically does not disappear, regardless of how long it’s been or how far one’s come. The effect is an endless sentence, precluding countless opportunities to move on or move up in life. But what about the other 75%? We Are All Criminals is a documentary project that looks at the three in four people in the US who have the luxury of living without an official reminder of a past mistake.  Participants tell stories of crimes they got away with.  They are doctors and lawyers, social workers and students, retailers and retirees who consider how very different their lives could have been had they been caught; these confessions are juxtaposed with stories of people who were caught for similar offenses. The stories are of youth, boredom, intoxication, and porta potties. They are humorous, humiliating, and humbling in turn. They are privately held memories without public stigma; they are criminal histories without criminal records. The project includes a wide range of current professions and severity of past offenses: a pediatrician who experimented with explosives as a bored teen; a biophysicist who seriously assaulted a child when he was just one himself; a legislator who disarmed a cop; a corrections professional who sold meth; a social worker who tipped over a porta potty with a high school rival inside; a retailer who slashed her cheating fiancé’s tires; a medical researcher who tagged playground equipment; a counselor who gave her Klonopin to a friend who had difficulty sleeping. A photograph that protects the participant’s identity while attempting to convey individuality and personality accompanies every story; each is taken in the participant’s home, office, crime scene, or neighborhood. While there are some exceptions, the majority of the people interviewed recounted numerous times they avoided getting caught in criminal activity.  In most cases, only one of these instances has been cataloged. The first 80 of more than 200 interviews can be found online, at www.weareallcriminals.org. Viewers will find varying responses to recollections of transgressions: people who laughed throughout their interview (a mechanic who ‘liberated’ forty dollars worth of quarters from a parking meter with a single, drunken rifle shot); people who wept throughout theirs (a restaurant manager who had swiped extra money when swapping out her tips at a coffee shop); people who were terribly sorry for what they had done (a teacher who furnished alcohol to a minor); and those who can’t believe that something they did might be prosecuted (a research scientist who stole items ranging from salt and pepper shakers, to street signs, to a fire hydrant). I hope viewers also find a bit of themselves in the photos or stories of We Are All Criminals. For those who have had the luxury to forget, I hope they remember events that haven’t been used to define their character at life’s every opportunity and turn. I hope in that reflection, viewers take note of the context they may have allowed themselves (I was young, I was drunk, I was stupid, I was in a bad relationship, I gave it back anyway, no one got hurt, It wasn’t my idea) and acknowledge that others may have been in a similar situation but were caught. I hope some recognize the privilege they’ve experienced (the cop just told us to go home, the manager didn’t even question us, we didn’t have a police liaison in school—we went to the counselor if we got in trouble) and appreciate that not everyone has benefited from that same privilege. I hope that viewers reflect upon how very different their own lives might have been had they been burdened by a record, and consider the foreclosed futures of those who have been caught. In this way, We Are All Criminals seeks to challenge society’s perception of what it means to be a criminal and how much weight a record should be given, when we have all violated the law. It is also a commentary on the disparate impact of our nation’s policies, policing, and prosecution: many of the participants benefited from belonging to a class and race that is not overrepresented in the criminal justice system. It’s true: we are all criminals. But more importantly, we are all human. With that in mind, we must work to reduce our criminal code (over the last few decades, our criminal code has exploded in size; we can reel that back by reducing the criminalization of homelessness, mental illness, juvenile behavior, poverty, and drugs); support and increase restorative justice alternatives; reduce the collection, retention, and dissemination of criminal and juvenile records; create meaningful remedies to those records that allow people a true chance to move beyond their records; reduce the collateral sanctions attached to criminal records; and importantly, begin the dialogue change in your own community. We Are All Criminals isn’t just about background checks. It isn’t just about the choices we make of whom to interview or hire, rent to, grant licensure to, or allow to cast a ballot.  It is about how we view others measured by how we view ourselves. And some of us, perhaps one in four of us, may be in need of a second chance.   Read more

More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible for record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here. Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee. Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement. The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on removing legal barriers and providing reassurances to employers and other decision-makers.  Judicial certificate programs have been enacted in the past year by Vermont and Rhode Island, following similar programs enacted in 2012 in Ohio and North Carolina. This more transparent “forgiving” relief tends to apply to a broader range of offenses than expungement, and may meet less resistance from law enforcement, business and the media than record-closing laws. Mainstream law reform organizations like the Uniform Law Commission and the American Law Institute have adopted the “forgiving” as opposed to the “forgetting” model of relief represented by expungement and sealing statutes.  Vermont is the first state to enact the Uniform Collateral Consequences of Conviction Act in its entirety, as described here.  The ALI’s approval of the Model Penal Code: Sentencing collateral consequences provisions is described here. A 50-state summary chart of judicial relief provisions, prepared for the NACDL Restoration of Rights Project, is available here.  The Wall Street Journal will publish a national study of expungement laws sometime in the next few weeks. Read more