Criminal Records are Hurting Our Future

Over 25% of Americans have a criminal record. That’s about 65 million people. Yet employers are getting more and more reluctant to even consider hiring someone if they have a criminal record. It’s becoming a real problem, and people are being turned down for jobs simply because they were once accused, not convicted of, a crime.

Let’s draw some distinctions here: there are several types and sub-types of criminal records, each meaning something different:

A record of an arrest but no prosecution;A record of an arrest and prosecution but no conviction; andA  conviction.

Let’s talk about each of these in more detail, because a record of even one of these can mean vastly different things.

All this means is that a person was arrested by a police officer. That officer believed (at least had to say he or she believed) that there was “probable cause” to arrest the person for a crime. But, once the case came to the prosecutor the prosecutor decided that it was not a case worth pursuing.

This could mean:

the crime never happened;the crime did happen but the prosecutor knows there’s no way to prove guilt;the crime did happen but it was so minor in nature that it’s not worth the time and money to prosecute the accused;the crime did happen but the police officer arrested the wrong person; and/orthe crime did happen and the police arrested the right person but the prosecutor believes the best thing is to not prosecute, for whatever reason (moral, the victim refuses to testify, etc.).

By looking only at an arrest record we have no idea. But arrest records and mugshots are public records, and stay public records until they are taken down through sealing or expungement. Also, even if the arrest record is sealed or expunged, several mugshot companies have popped up, basically holding people’s mugshots hostage. Even if the person pays to have their records taken down there’s no guarantee it won’t pop up again on another site, or in some cases, the same website.

This means the person was arrested and the prosecutor decided that the case was worth pursuing, but the defendant was not convicted of the crime. This can happen in several ways:

The case went to trial and the jury acquitted the defendant;The defendant agreed to a plea deal that did not include a conviction;The judge dismissed the case because the prosecutor was not able to prove the elements of the crime;The prosecutor dropped the case because new evidence came to light that showed they were prosecuting the wrong person;The prosecutor dropped the case because none of the witnesses  could be found to testify;The defendant’s attorney got the judge to suppress the evidence against them because the police officers violated the defendant’s rights; and/orThe prosecutor dropped the case because the defendant agreed to testify against a co-defendant.

Again, by looking only at the fact that a person was arrested and prosecuted, we have no idea of what really happened. Unless court records are sealed or expunged the record that a person was prosecuted is public, even if they were falsely accused of a crime.

A person is convicted of a crime. In Florida, you can be convicted of a crime for driving without a license. For fishing without a license. For doing or not doing a whole host of non-violent things.

Also, there’s a very big difference between a misdemeanor conviction and a felony conviction. Convicted felons lose their right to vote and own a firearm. They face very tough employment prospects. But being a convicted felon doesn’t mean a person committed a violent crime. The difference between a felony and misdemeanor marijuana conviction is a matter of grams.

More and more employers are requiring background checks, even for jobs that probably shouldn’t require them. Do you really care if your dry cleaner got a DUI 10 years ago? What if the manager of your local grocery store got arrested for smoking dope in high school – would you still shop there? The point is that there are a huge number of stupid, meaningless and victimless crimes people can be accused, prosecuted for, and even convicted of that prevent them from being employed.

Yet we’re seeing some progress moving forward. Tampa’s city counsel is considering a “ban the box” law that would prevent some employers from considering criminal history before determining if the applicant is qualified. The Florida legislature has been considering new laws that would shorten the length of time a juvenile case stays on someone’s record.

Also, people (as long as they’re eligible) can get their records sealed or expunged. This is something that we always offer to our existing criminal clients for free, because we know that your future is important.

Hopefully our lawmakers will make more progress on common-sense ways to prevent a criminal record from being a permanent scar on someone’s future.

photo credit: George Wilson via photopin (license)

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What is the Purpose of Criminal Sentencing?

Being charged with a crime, any crime, is a serious event. As attorneys, we usually use this space to talk about things like the elements of crimes and whether or not the prosecution has enough evidence to convict someone. But right now I’d like to talk about something different — what, exactly, is the purpose behind sentencing someone found guilty of a crime?

One of the biggest questions governments have faced since we started having laws is what to do with people who break them? Do we punish them? Do we try and teach them why they shouldn’t have broken the law? Do we exile them to an island? Do we kill them? Do we use their punishment as a lesson for other would-be lawbreakers? Do we try and rehabilitate lawbreakers so that they don’t break laws in the future?

Difficult questions. There aren’t really any easy answers, except that we’ve pretty much agreed as a society that we shouldn’t execute people for petty crimes. But for everything else, ask 10 people what the government should do with someone convicted of shoplifting and you’ll get 10 different answers. Recently a man in Alabama received a life sentence for shoplifting a nail gun. Is that what we, as a society, want from our criminal justice system?

Florida’s philosophy in criminal sentencing is this:

The primary purpose of sentencing is to punish the offender. Rehabilitation is a desired goal of the criminal justice system but is subordinate to the goal of punishment. F.S. 921.002(1)(b).

So Florida’s primary purpose in sentencing someone after they are convicted of a crime is to punish them. Rehabilitation takes a back seat to punishment. But is that how it should be?

Think about they way we name prisons now — we call them “correctional institutions.” The part of state goverment in charge of housing those sentenced to prison is called the “Department of Corrections.” We have moved from only punishing people to “correcting” them. One of the missions of the Department of Corrections is “offering [prisoners] opportunities for successful re-entry into society.”

One thing is beyond question: the United States has the highest incarceration rate in the world. Higher than countries we think of as oppressive, less free, or that give people fewer rights. Higher than military dictatorships or communist regimes. We have more jails than we have colleges. Based on this map, Florida has more people serving time in prison than we do college students living on college campuses.

That’s a problem. A big problem. When people talk about this problem they talk about things like the “war on drugs” or mandatory minimums that require certain sentences for certain crimes or repeat offenders. The guy sentenced to life for shoplifting a nailgun I mentioned above was given that sentece due to Alabama’s mandatory minimum laws. While we may talk about wanting to “rehabilitate” prisoners into becoming members of society, we sure don’t act like it.

There are solutions to this problem. The Justice Department has made sentence reductions for some drug offenses retroactive, meaning that people currently serving time can apply to have their sentences reduced. Groups such as Families Against Mandatory Minimums are working to change the sentencing laws so that our country’s prison population doesn’t stay the highest in the world. Even conservative lawmakers are starting to come around to the idea that our huge prison population is costing us unnecessary billions each year. Hopefully this means change is on the horizon.

Sam proudly represents those accused of crimes and injured through no fault of their own throughout the greater Tampa Bay area.

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Criminal Record and Job Applications

These are some of the most frequent questions we hear as criminal defense attorneys. Mistakes shouldn’t follow you for the rest of your life, but unfortunately they often do. Being arrested or convicted of a crime can have long-term effects on your job prospects. More and more employers are asking whether or not you have a criminal history on job applications. Even a minor offense can harm your job prospects. But this may be about to change.

A Florida legislator has filed a bill making it illegal for an employer to consider an applicant’s criminal record on an initial job application. Bill text here.  If the bill is passed and becomes law, it would keep any employer (who isn’t required by law) from considering your criminal history before determining whether or not you are qualified for the job. This means that they could not use a criminal record as an automatic disqualifier for a job.

Keep in mind that this proposed new law doesn’t apply to jobs that require a background check, such as those in teaching or providing child care. So if an employer is legally required to do a background check, this law wouldn’t impact that.

Too often employers use a criminal history as a reason to not hire someone, even though they are qualified and would be a good employee. This law won’t fix those problems overnight. But, if it is passed it would be an important step in ensuring that people’s arrest records or criminal histories aren’t considered by employers when they should be.

photo credit: jrmyst via photopin cc

Sam proudly represents those accused of crimes and injured through no fault of their own throughout the greater Tampa Bay area.

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Criminal Record Expungement Options

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There exists more than one way to obtain an expungement of a Kentucky criminal record involving more than one misdemeanor.
In Kentucky, KRS 431.078 generally governs when a person may expunge a misdemeanor conviction, a dismissal, or amended charges. However, this statute limits expungments to only ONE criminal offense within a 5 year period. Upon learning this fact most people with more than one criminal record over several years simply give up.
Individuals with criminal records experience difficulty obtaining gainful employment, entering into and staying in the military, or obtaining credit. Many of these people are basically good but may have made an error in judgement, or in some cases, chose to plead guilty to a crime they did not commit because they did not have the money to retain an experienced criminal defense attorney and did not want to remain in jail waiting for trial ( I note that with the help of an experienced criminal defense attorney, many of these people might have qualified for a pre-trial diversion program which would have resulted in an automatic expungement of their criminal charges once they fulfilled the requirments of the program.). Additionally, for some, the court system helped them reform and want to pursue a lawful path in the community.
Some of Kentucky's 120 counties recognize the problem and have expungement programs in place which may not be advertised nor well known to the public nor known by all criminal defense attorneys. Based on the county, the programs go by various names with the criteria for expungement set either by the county attorney or the individual judges. The programs are very fact dependent and are not available to all criminal offenders. These programs typically require advance payment of program and court costs, the meeting of certain conditions by the applicant, agreement by the prosecutor, petitions made to the courts, and more.
As an example, a college student who had committed three misdemeanors (alcohol intoxication) over a period of time feared that he would not be able to obtain gainful employment after graduation and would not be able to pay his student loans. Working with the county attorney, we entered the student into a program so he would not have a criminal record on graduation.
These special program expungments typically require the services of an experienced criminal defense attorney knowledgable about the various county programs.

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DUI Criminal Defense and Jury Trials- Clients and Defenses

In the last post I discussed the difficulty in DUI jury trials and why I enjoy DUI and criminal defense. In this blog entry, I will discuss clients and defenses. The two go hand in hand for a number of different reasons that will be explained. The last blog post in this series will examine the "cost-benefit" analysis which involves what is given up in the decision to go trial.

First, the mentality of the client is very important. Some clients go into an initial client meeting and the first thing they say is they want to plead guilty- they want to accept responsibility and all this over. On the other side of the spectrum, clients want a jury trial. For the first type, the advice is to wait- that the People's case must be examined prior to pleading guilty. Further, this is exactly the type of person that is least likely to be a risk to society- they recognize that their behavior must change- and can change their behavior on their own regardless of punishment. Personal responsibility is separate than the People's duty to prove their case beyond a reasonable doubt.

The client may also have to testify. This involves public speaking, which can terrify a person. I have taken the testimony of many civilians in criminal and civil proceedings, and can usually help a client work through their fears to give good testimony. It is also important to answer the question, and not go off on tangents. I've won jury trials where a witness spoke too much, and proved their own defense to be a sham. The witness must be credible, efficient, and confident. Or, again, they may be giving the prosecution a guilty verdict.

Second, is the defenses involved. There are a number of defenses I list in my mailings. However, for many defenses, the facts must fit the defense. Attempting to shoe-horn facts into a defense will not pass the common sense test- and common sense is the cornerstone of jury trials. For instance, a rising defense with a .15% BAC, necessity defenses where other options are obvious, driving defense in the middle of a lighted, populated area with witnesses, GERD defense with no medical history, etc.

Criminal defense attorneys sometimes lose sight of common sense and work themselves up into a righteous ignorance. A defense may exist that would score extra points in law school, but does not work in the real world. And jurors live in the real world. The defense must fit facts, albeit with room to squeeze some, but otherwise the client is headed straight towards a guilty verdict.

Finally, the client must be present for the jury trial. For misdemeanors, through Penal Code 977, defendants do not need to be present. But if the client/defendant is not taking the time to be present for their jury trial, the message to the jury is that it isn't worth their time either. The defense theory itself is compromised. The presence of a defendant humanizes the experience, and grounds the full weight of "beyond a reasonable doubt" which our land demands of criminal prosecution. If not present, the prejudicial effect of DUIs is magnified, and it is quite easy for the jury to convict.

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A Boston Criminal Defense Lawyer Discuses Changes In MA Parole System Due To Homicide Of Woburn Police Officer- Attorney Sam’s Take

If you heard a cacophony of crashing noises yesterday from the direction of Boston’s Beacon Hill, it was the sound of Massachusetts governor Deval Patrick , along with a certain Parole Board, caving in to public ridicule and political pressure.

As you have heard time and time again, the now-infamous Massachusetts Parole Board released a repeat violent offender in 2008. Of course, it was not the first time that this has happened. However, this time, said offender , in 2010, was involved in a robbery to which the late police officer John Maguire responded. There was a gunfight and the officer, as well as the offender, were killed. Since that time, amongst various reports of unexplained police shootings of suspects and non-suspects, a state-wide hand-wringing has been occurring.

Naturally, in 2011, tragedy must be someone’s fault. Someone living’s fault. Thus, it was the Parole Board’s fault.

At first, Governor Patrick had the gall to be a leader and indicate before rushing to judgment and demanding the Parole Board’s heads on a stick, that perhaps we should concentrate on the victims, then gather all the evidence and then decide fault.

Well, so much for that kind of nonsense.

Governor Patrick has now announced “sweeping changes” at the Massachusetts Parole Board. The political broomstick has swept out, for example, the five Parole Board members at issue (through their own resignations, of course).

Said sweeping also includes a moratorium to remain in place on executive sessions for high-risk offenders, he said. The governor also promised to file legislation calling, among other things, for tougher sentencing for repeat offenders and greater truth in sentencing. According to press accounts, Governor Patrick wants paroles of repeat violent offenders to stop until the Parole Board can demonstrate an ability to oversee their release.

Patrick also said at the news conference he was appointing Josh Wall, first assistant district attorney in Suffolk County, as the interim executive director of the board. He also said he had nominated Wall to the board and intended to appoint him chairman.

During my many years as an experienced Boston criminal defense attorney , I have had many dealings with assistant district attorney Wall. He is an experienced prosecutor and, as the late Jerry Williams would say, “Not a bad guy”.

He is, of course a seasoned prosecutor which means he is well indoctrinated to that point of view. I suppose that’s ok…the assumption at parole is, after all, that the potential parolee “did it”.

The problem is when the governor, who should know better, succumbs to the weight of political expediency. Statements like no paroles should be allowed until the Parole Board can guarantee that it can oversee all parolees is a command not rooted in reality and he knows it.

Parole cannot guarantee that. Not enough resources.

One might as well say that nobody will be placed on probation any longer because the Department of Probation cannot guarantee adequate oversight. Anyone in the system will tell you that, actually, they can’t if they are honest.

I wonder if, given the above-referenced police shootings and beatings, whether we should hold off on giving police officers weapons until we can guarantee that they are all fit and properly supervised. Ahh, but now I am talking crazy...!

Again, in a system where we try to cure everything by criminal sentences and prison terms, it is not possible. There are not enough resources and there will be less tomorrow. Raise taxes for it? Come on…you know better than that.

On the other hand, the governor claims he wants better “truth in sentencing”:. Actually, we have that. A sentence of 10 years, for example, means that you will basically serve 10 years. However, “life sentences” which sound so good ‘n tough cannot actually always mean life. First of all, it would not be appropriate for all those who receive such sentences. Further, again, we would not have the resources to keep all of them in for life. Finally, take away all hope of freedom and all such prisoners would have nothing to lose by their conduct. In short, an already inadequate and, n my view dangerous, correctional system will become more out of control.

On the other hand, such “tough talk sounds mighty good when you say it fast, doesn’t it? True, it might trample on a few felons’’ rights, but, after all, they are criminals, so we don’t really care about their rights.

Nor the problems the resulting anger, bitterness and realization that the “Justice System” is anything but that in the “big house” will bring.

At least, for now.

Until the whole system shuts down.

But we can continue to play our word games until then, can’t we?

In the meantime, if you want to cut down on the odds of your becoming one of these “human beings turned statistics” after being accused of a crime, you want a criminal defense attorney with experience. If you want that attorney to be me, If you would like that attorney to be me, please feel to call me to arrange a free initial consultation at 617-492-3000.

Have a great, safe and law-abiding weekend!

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/governor_announ_2.html?p1=News_links

View the original article here

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