Tag: Proposition 47

Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges. The advisory explains DAPA thus: DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally. The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.) A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000.  “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences).  Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be. The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions. The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA. Read more

California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights  California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassified as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions. But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges. Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement. But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Interaction of Prop 47 with other relief mechanisms In California, meaningful protection against employment discrimination on the basis of a conviction—felony or misdemeanor—comes from a complicated web of local, state, and federal laws and regulations, including sections of the Penal, Labor, and Business and Professions Codes, the federal Fair Credit Reporting Act and its California analogue, and local ordinances. Most of our reentry clients become employable through these steps: First, we help them petition to obtain set-aside and dismissal relief pursuant to Penal Code sections 1203.4 (felony and misdemeanor probation cases), 1203.4a (misdemeanor and infraction non-probation cases), and 1203.41 (felony jail cases) for all convictions. (Note:  While these authorities are sometimes called “expungement,” there is no true record-closing remedy for most cases; these “dismissed” convictions remain on a person’s record and in public court records, do not restore driving privileges or gun rights, and still must be reported for many types of employment). Second, we help them navigate the complicated obligations of disclosure, and where applicable, invoke the protections under Labor Code section 432.7(a) that prohibit some—but not all—prospective employers from inquiring about or considering dismissed convictions for some—but not all—jobs. Third, if a background check company reports dismissed convictions to a potential employer in violation of the law (and chances of that are unfortunately high), we help them invoke protections under the Fair Credit and Reporting Act and its California analogue, and try to convince the background check provider to disseminate a corrected report check in a timely way. Fourth, we work to convince the employer to make the hire despite the erroneous background check, and if the employer declines to reconsider, we invoke the protections of Title VII of the Civil Rights Act, where applicable, and local ordinances, such as San Francisco’s Fair Chance Ordinance. Note that there are different, even more complicated laws, regulations, and processes covering the 30% of jobs in California that require fingerprint clearances. If threading this needle sounds daunting, imagine what it’s like for people doing it without the benefit of legal advocacy. Prop 47 creates a welcome additional reentry remedy to the web of reentry and restoration laws in California, but also creates additional complexities.  There are many different routes to relief in California, depending on the disposition of the criminal case, and Prop 47 reclassification may not be the only or even the best route available.  For example, someone who is a licensed security guard who has an old conviction for simple possession of drugs may be eligible for Prop 47 reclassification, but he may also be eligible for a reduction of a felony to a misdemeanor pursuant to Penal Code section 17(b). If he receives Prop 47 relief, he continues to face a lifetime firearm ban. If he obtains 17(b) relief, he may have his firearm rights restored, and can apply for a license as an armed security guard, a pathway to employment with family-sustaining wages — something out of reach for many in the reentry population, even those who do have jobs. More broadly, people will need to affirmatively file for Prop 47 relief, and for some offenses prove eligibility. In order to take full advantage of protections that limit collateral consequences of conviction beyond reclassification, they need to determine if they are eligible for other reentry remedies and file for those in all of their cases in all counties, including but not limited to early termination of probation, set-aside and dismissal, Certificate of Rehabilitation, restoration of rights for veterans pursuant to Penal Code section 1170.9, juvenile record sealing, and reduction of felony fines and fees. And the many people who will learn that they are ineligible for Prop 47 relief will need advice about other legal remedies that can help them realize their goals in reentry. Immigration It is particularly important that non-citizens understand the impact of Pro 47 relief in their cases. Changing a felony to a misdemeanor could have many important consequences for immigrants.  It could expand relief from removal for some, and eliminate the basis of removal for others. Crucially, Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA)—announced by President Obama November 20, 2014—are barred to immigrants with a single felony conviction and certain misdemeanor convictions. Reclassifying an offense as a misdemeanor under Prop 47 could create an opportunity for temporary relief from removal and work authorization that would otherwise be unavailable to many individuals. Additionally, when combined with another momentous change this year to California’s Penal Code under SB 1310, which reduced the maximum on misdemeanors from 365 to 364 days, Prop 47 reclassification could eliminate a ground of deportability. The timing of relief is also important to consider. Immigrants who would benefit from the 1-day reduction in the misdemeanor maximum should wait until January 1, 2015, when the new law, Penal Code section 18.5, goes into effect, before seeking relief under Prop 47. But, at the same time, Prop 47 will unfortunately do little to mitigate the disastrous immigration consequences of most drug convictions. With the exception of DAPA/DACA eligibility (which is available to otherwise qualifying individuals with one misdemeanor drug possession conviction), almost all other drug convictions, even if reclassified as a misdemeanor under Prop 47, will continue to be grounds for mandatory removal. Summary  The release of people from prison currently serving sentences for low-level offenses is an unmitigated success of Prop 47. For people no longer in custody and who have completed their sentences, Prop 47 is a welcome addition to the tangle of laws that form California’s reentry policy. However, to fully realize Prop 47’s promise to limit the counterproductive, costly, and inhumane collateral consequences of low-level felony convictions, implementation of this law must include reentry legal services to help people address the unique issues in their cases. And it’s not clear that county public defender offices have the expertise or resources to take on this full range of legal advocacy—which includes immigration, employment, consumer, and administrative law—for their thousands of past clients. It’s important to figure out, and quickly, how to make these services widely available. California has only three years to get this right.   This post was co-authored by Meredith Desautels. Meredith is a staff attorney in the racial justice program at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and directs the Lawyers’ Committee’s Second Chance Legal Clinic. Rose Cahn, a Soros Justice Fellow at the Lawyers’ Committee specializing in post-conviction relief for noncitizens, also contributed substantially to this piece.  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