Category: Policy

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

“The Evolution of a Prison Reformer”

On November 10, The Crime Report posted a profile of CCRC Board member Glenn Martin and the organization he founded, Just Leadership USA.  Just Leadership is dedicated to cutting the US prison population in half by 2030 and to training formerly incarcerated individuals to become leaders in promoting criminal justice reform.  Martin himself spent six years in the New York prison system, and later served for more than a decade in key positions at The Fortune Society and Legal Action Center. The profile describes Martin’s participation last October in an unprecedented meeting between Obama Administration officials and leaders of the community of formerly incarcerated individuals, organized by the Attorney General Office’s Interagency Reentry Council.  The meeting focused on sentencing reform, but it presented an unusual opportunity to challenge some stereotypes about who should be at the table when reform is discussed. At its core, Martin said, Just Leadership challenges some people’s broad assumption that formerly incarcerated people “can’t read or write” or smartly weigh in on the socially and emotionally tangled issues of crime, courts and corrections. For the most part, the individuals leading that discussion tend not to have been imprisoned. Although many of them play significant roles in the courts, corrections and policing, some harbor ideals and opinions that are not always grounded in fact, Martin argues. “You don’t achieve a moral argument for reform if you do what [so-called] progressives have been doing for years, serving up the ‘perfect prisoner’ who is the first-time, non-violent drug offender . . . .  That person . . . actually doesn’t go to prison. I’ve never met him. That’s the person who went home from the courthouse. By the time [most] people end up in prison, they have multiple convictions.” Just Leadership, whose partners include the Columbia University Center for Institutional and Social Change, will host its first 10-month-long training in early 2015, and is inviting applications from former prisoners interested in playing a part in the national debate over crime, courts and corrections policy and reform.  The training will focus on organizational development, fundraising, marketing, public relations and other skills that will help them make their voices heard in Just Leadership’s campaign to halve the nation’s prison population by 2030. Martin contends that hoped-for reduction is not as far-fetched as it may seem, considering that New York State has cut its prison population by about 25 percent over the last 15 years. But Just Leadership’s core goal is to “shift the paradigm” of the criminal justice debate by appealing to the compassion and common sense of Americans, Martin said. Once ordinary citizens hear the real stories of individuals who have been incarcerated, and about the multilayered impact of mass imprisonment on society, “we’re going to get the system to tip,” Martin predicts. . . . . While serving time in prison, Martin said he realized that Americans were being “bamboozled” by standard explanations about who goes to prison and what happens to them once they get there. While “the concept of rehabilitation has deteriorated into rhetoric without substance,” Martin said, those inside were far from totally demoralized. “The people I shared cells with maintained hope, dreams and aspirations, just like any other American,” he recalls. “Many of them also had a keen understanding of the policies and practices that led to mass incarceration and, more importantly, what we can do differently.” 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

NY Times spotlights the growing popularity of “ban-the-box” laws

An article on the front page of today’s New York Times describes the growing popularity of “ban-the-box” laws to help people with a criminal record get jobs.  The article also discusses the massive hurdles to employment that many with a criminal conviction in their past — some of which are for minor offenses that are a decade or more old — face without such laws in place to ensure fair hiring practices. The National Employment Law Project (“NELP”) keeps track of the growing number of states and cities that have adopted ban-the-box laws, including summaries of the laws and policies in those jurisdictions.  NELP’s current guide to state and local ban-the-box laws (including coverage of legislative initiatives) can be found here. From the article: During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years. The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening. Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted. The Times has posted some interesting responses from the founders of the Pennsylvania-based Fair Employment Opportunities Project (and others) here.  The attorneys behind the Project argue for additional restrictions on the use of criminal history information once it has been disclosed to employers: While “Ban the Box” laws that forbid asking about a person’s criminal history are a good first step, we need stronger laws to empower job applicants with arrest or conviction records to become self-sufficient through employment. Several states already have such statutes, including Pennsylvania, where the Fair Employment Opportunities Project is working to educate employers and the public about the law. Pennsylvania’s statute [18 Pa.C.S. § 9125] could be a model for other states. It forbids employers from considering non-convictions (like acquittals) when making hiring decisions. Convictions may be considered only to the extent they relate to the applicant’s suitability for the job. And when employers reject applicants because of their records, they must give written notice — an important safeguard, because criminal record databases are notoriously error-ridden and ensnare even people who were charged but never convicted. Read more

Gubernatorial candidate brings clemency issues to forefront of Maryland race

1 comment
Larry Hogan, Republican candidate in the Maryland gubernatorial race, criticized current governor Martin O’Malley’s sparing use of executive clemency and pardon power. As reported in the Washington Post: Republican Larry Hogan says a governor’s authority to commute sentences and pardon prisoners is an important power that he would rejuvenate if he is elected governor. Hogan spoke in an interview with reporters of The Associated Press on Monday. Hogan says he believes Gov. Martin O’Malley’s administration hasn’t made pardons and commutations a priority of his tenure. Hogan says while he considers himself to be a tough law and order candidate, there are people who need the pardon and commutation process. He says he would seek help former Gov. Robert Ehrlich’s help in using the power more. Read more