Articles Posted in Criminal Conviction

It is estimated that at least 70 million people in the United States have a record of an arrest or conviction. In California alone, an estimated 8 million people have to live with a criminal record, and in 2018, an estimated 2.5 million Californians of working-age had a felony record. These figures have cost the state approximately $20 billion in gross domestic product annually.

In California, an individual’s criminal record is kept until a person reaches 100 years of age, even though most people with a criminal record had long paid their debt to society. The effects of a criminal record have always been enormous, but this is truer then ever in today’s world where the use of background checks is more widespread than ever. As a result, a quarter of the state’s population is facing numerous barriers to building and having a decent life. The presence of a criminal record prevents people from entering certain careers, obtaining housing, long-term employment, and participating fully in civic life. Most notably, the consequences of a criminal record have historically affected minority communities disproportionately and have been a leading driver of recidivism and perpetual poverty.

For years now, California has been at the forefront of Criminal Justice Reform and has been adopting numerous measures in an attempt to rectify the effects of the tough on crime policies of the past. As part of the ongoing efforts to reform that the California policymakers have embarked on, and recognizing the devastating consequences a criminal record can have on a person’s ability to reintegrate into society, they passed SB 731. Governor Newsom signed the bill into law on September 29, 2022, and the bill became effective on July 1, 2023.

Despite the ongoing efforts by California’s leaders to improve the State’s criminal justice system and to make it fairer, California still has some of the most severe sentence enhancements in the United States.

One of the main principles of the criminal justice system is that the punishment has to fit the crime. Unfortunately, California’s hyper punitive policies enacted in the 1980s and 1990s, resulted in a serious distortion of one of the most basic legal standards of the criminal justice system. By the end of the 1990s, California’s legislature had managed to enact more than one hundred different enhancements, which have added years to the prison sentences of majority of inmates. The State’s aggressive sentencing enhancement laws have led to mass incarceration, overburdening of the state’s budget, and most importantly, have disproportionately affected marginalized and minority communities and their economies.

There have been numerous studies on enhancements that have shown that adding time to an already lengthy sentence has not been a successful deterrent to crime and has not had a positive impact on public safety. In line with these studies, the California legislature has been working hard to enact laws that will prevent the application of indiscriminate sentence enhancements while still allowing judges to impose harsh and lengthy sentences when the conduct demands it.

The United States of America has the largest prison population in the world. Not only does the US have more incarcerated people than even China, but the United States account for roughly 25 percent of the world’s total prison population, and within the country, California ranks second behind only Texas.

The mass incarceration in California has not only caused prison overcrowding, but has also had a devastating impact on the State’s budget, as the annual cost per prisoner is over $100,000. The tough on crime policies of the 1990s have not only led to overcrowding of California’s prisons and a strain on the State’s budget, but they have also proved counterproductive and have had a detrimental impact on countless of inmates and their families, and have disproportionately affected marginal and minority communities.

Fortunately, in the last several years, California’s leaders have recognized than many of the State’s sentencing laws have not only failed to effectively serve their intended purpose of increasing public safety, but more than that, they have led to excessively punitive sentences, unnecessarily long incarcerations, and overall inequities.

In the last few years, California’s legislature has been at the forefront of enacting laws aimed at reforming the State’s criminal justice system and rectifying the injustices and the disproportionate effect that some of the State’s policies have had on marginalized and minority communities.

As part of the ongoing effort to fight the biases and racial discrimination that have been prevalent in our criminal legal system, in 2020, the California legislature passed AB 2542, or the Racial Justice Act, which came into effect on January 1, 2021. The law prohibited the state from obtaining or seeking to obtain a criminal conviction or imposing a sentence on the basis of race, ethnicity, or national origin. The landmark law was a step in the right direction and was welcomed by criminal justice reform advocates.

Prior to the passing of AB 2542, proving racial biases was almost impossible. In the 1987 decision McClesky v. Kemp, the U.S. Supreme Court imposed an unreasonably high burden on defendants to prove racism in criminal cases. In short, the Court required defendants to prove intentional discrimination and held that statistical disparities are not enough to show a constitutional violation.

Non-citizens, including lawful permanent residents, can experience profound immigration consequences for even minor or very old criminal convictions. Prior to 2017, California law only allowed defendants to challenge their conviction while they were in actual or constructive custody, i.e. parole or probation. As a result, countless people were left with no recourse and way of challenging their convictions. This gap has had a particularly devastating impact on the state’s immigrant community.

Throughout the years, many immigrants in California have entered a plea or have been convicted at trial, without being properly informed of the immigration consequences of a criminal conviction. And for most non-citizens, the immigration consequences of a conviction only come to light when they find themselves in immigration court facing deportation, which, in many instances, can be years after they had completed their criminal sentence. In most of those cases, the only way for a non-citizen to avoid deportation and to remain in the United States is to challenge their criminal conviction. However, because California law did not provide a post-conviction relief for people who were no longer in custody, many people have been unjustly deported, or at best, have been stuck in the backlogged immigration system for years.

Recognizing that there are a large number of immigrants in California who have already finished serving their sentences, but who have not received the proper legal advice about the impact their convictions could have on their immigration status, the California legislature enacted Assembly Bill 813, which was codified as PC 1473.7, and became effective on January 1, 2017. Essentially, the new law gave people who were no longer in custody the ability to challenge their criminal convictions and vacate their judgments. Initially, the law was limited to convictions that were the result of a plea of guilty or nolo contendere. However, in 2021, the state legislature passed AB 1259, which amended PC 1473.7. As a result, as of January 1, 2022, the law now also provides a post-conviction relief for non-citizens who were convicted at trial.

Until 2019, countless of inmates in California had been serving unjustly long sentences for murder convictions, even though they never killed, attempted to kill, or intended for a person to die. Fortunately, as part of the ongoing criminal justice reform in California, in 2017, the state legislature acknowledged the need for more equitable sentencing of offenders and determined that reform in the laws is necessary to reflect one of the basic principles of the law and of equity, that a person should be punished for his o her actions based on their own level of individual culpability.

As a result of their findings, the California Legislature concluded that the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, have to be amended, and on September 30, 2018, the former California Governor Jerry Brown, signed into law SB 1437, which was codified as Penal Code §1170.95. In short, SB 1437 changes Penal Code §§188 and 189 by limiting the number of people that can be convicted of felony murder, and by effectively eliminating the role of the natural and probable consequences doctrine in murder cases.

Prior to SB 1437, a person could have been convicted of felony murder if he or she participated in or aided in the commission of a felony and a victim died during or as a result of the felony. Under the new law, in order for someone to be convicted of felony murder, he or she has to participate or attempt to participate in a felony in which a death occurs and:

On September 30, 2020, Governor Newsom signed into law Assembly Bill 3234, which was codified as Penal Code §§1001.95-1001.97, and became effective on January 1, 2021. AB 3234 is a product of the continuing criminal justice reforms in California. The Court Initiated Misdemeanor Diversion is essentially a “get out of jail free card” as it provides an alternative to criminal prosecution and aims at preventing the creation of repeated offenders by keeping non-violent offenders out of jail by giving individuals a second chance and a clean slate.

In essence, AB 3234 gives judges the power to grant a diversion to a defendant in a misdemeanor case and to postpone the case for up to 24 months. Importantly, under this law, a judge has the power to “divert” a case, even if the prosecuting attorney objects. The offer of a diversion is entirely within a judge’s discretion, which means that the defendant has to show good reasons for why he or she is worthy of being granted a diversion. In considering whether to grant judicial diversion, judges would take into account defendant’s history, character, background, and the specific facts of the case and every diversion will be tailored to the specific circumstances of each case and the crime charged.

A defendant would be deemed to have successfully completed the judicial diversion program when they complete all court-ordered terms, conditions, and programs, which can include community services, treatment programs, anger management or domestic violence classes among others. In addition, during the duration of the program a defendant has to comply with any court-ordered protective or stay-away orders, or orders prohibiting firearm possession. Finally, a defendant has to make full restitution to the victim. However, the law specifically states that a defendant’s inability to pay restitution due to indigence cannot be grounds for denial of diversion or a finding of failure to comply with the terms of the diversion.

A criminal conviction can have a life changing and potentially devastating impact on anyone. However, under federal law, certain offenses are considered deportable, including controlled substance offenses, crimes of moral turpitude, and aggravated felonies. So, for noncitizens, a criminal conviction brings with it potentially very grave collateral immigration consequences. In many instances, the individuals who are convicted of qualifying offenses, have spent their entire adulthood in the United States, have build their lives and have families here, and have no other place they would call home. Yet, following a criminal conviction, noncitizens face the threat of ending up in immigration court to face a potential removal and deportation to a strange country and permanent separation from their families.

Fortunately, in light of the adverse immigration consequences noncitizens face, some district attorneys are starting to adjust their offices’ immigration-related policies, including the Los Angeles District Attorney, George Gascon. On December 6, 2022, Mr. Gascon issued a new special directive outlining the new immigration policies of the LA District Attorney’s Office, which, among other things, is aiming to address the overly punitive consequences accused noncitizens could face.

First, according to the new policy, prior to when a charging decision is made, any person who is under investigation or their attorney, can present information demonstrating the potential adverse immigration consequences that could follow. In such cases, all charging determinations by the DA office should be made with the goal of avoiding or mitigating any adverse consequences a charge could have, and if there are possible alternatives to charges being filed, the DA office should pursue those alternatives. In addition, the new policy encourages prosecutors to expand the use of pretrial diversion programs that do not require an admission of guilt.

What is a pardon – Eligibility and Benefits

The effects of a criminal conviction do not end once an individual has served their sentence. In fact, the consequences of a criminal conviction can last forever and can impede the rest of a person’s life. Fortunately, the California Constitution gives the governor the power to grant clemency in the form of a sentence commutation or a pardon. While a commutation is directed at people who are still serving a sentence, a pardon is designed to reward people who have shown that they have been fully rehabilitated after serving their sentence for a criminal conviction.

In general, anyone who had been convicted and has completed his or her probation or parole for a California state criminal offense can apply for a Governor’s pardon. The only exceptions are for individuals who have been impeached, as well as those convicted for crimes in other jurisdictions or for federal crimes.

What’s Commutation – Eligibility and Benefits

For the past few decades, California has been known for its tough-on-crime policies and its extremely harsh sentences. Fortunately, the California Constitution gives an individual the right to seek a commutation of sentence. Commutation is a form of clemency that the governor has the authority to grant and is an important form of post-conviction relief. In short, commutation is a reduction or a termination of a sentence.

Almost anyone who has been convicted of a state criminal offense can apply to have their sentence commuted, with the only exception being for individuals that have been impeached. Notably, commutation applies only to state crimes, and the governor lacks the power to commute sentences for convictions in another state or country, or for federal or military offenses.

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