Tag: guilty plea

“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

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