PROSECUTORIAL DISCRETION – OR WHY KIRSTJEN NIELSEN WAS 100% FULL OF CRAP

PROSECUTORIAL DISCRETION – OR WHY KIRSTJEN NIELSEN WAS 100% FULL OF CRAP

We heard it over and over again this week from the White House. There was “no policy of separating families at the border.” And yet we also heard, over and over again, that in the past six weeks alone, a staggering 2,300 children were separated from their parents at the border. So what in the world happened?

Listening to White House representatives insisting that there was no policy of separating families was utterly bewildering to many, self included. How could they have insisted so vehemently, in the face of undeniable evidence? In more in-depth interviews and statements, they explained that in the implementation of the “zero-tolerance” policy, and in the prosecution of every single case of illegal entry, there was no way to allow children to accompany parents through the process of criminal charging and detention. For that reason, they explained, they had no choice but to separate families.

Does that satisfy you? It shouldn’t. Not only because it doesn’t pass the smell test (it stinks) but because it’s untrue. This is the problem with zero-tolerance policies. They are just that, policies. They are NOT law. There is no law requiring “zero tolerance” in prosecution. In fact, the law states the opposite, and it has for a long, long time. To be exact, the doctrine of prosecutorial discretion was born with the first Judiciary Act establishing the federal public prosecutor in 1789.

Every prosecutorial position in our government, whether state or federal, enjoys nearly unbridled freedom to determine which cases to pursue, and how to pursue them. These case-by-case determinations are almost never subject to judicial review. It has been true for hundreds of years, and we should hope that it will continue to be true for hundreds more. That’s because prosecutorial discretion is an excellent tool to preserve judicial economy, and to prevent absurd outcomes like separating babies from their parents. So in the past, when it would result in a federal agent literally wrestling a screaming child out of her mother’s arms, the government would simply decline to prosecute. And families stayed together. Imagine that.

The current White House framed this atrocity as black and white, as though their hands were tied. But that is total, unmitigated nonsense. It created an illusion that it was forced to choose between anarchy and tyranny, and that a brutal, inhumane outcome was the only option in order to spare the world from chaos. That is an age-old assertion that every dictator from Hitler to Stalin to Hussein employed to justify heinous human rights violations. It’s the same spiel that former Commander Jon Burge used to justify the institutionalized torture of over 100 (that we know of) African-American males by the Chicago Police Department for over two decades, in order to force confessions. And if we’re not careful, if we buy into it, if we don’t stand up for basic human rights by speaking, writing, organizing and ultimately voting these people out, we face the very real threat of atrocities that make this one seem tiny in comparison.

Prosecutorial discretion is real law, as opposed to this administration’s make-believe law. Please explain it to anyone who tries to tell you that separating families wasn’t White House policy, or was necessary to enforce the law at the border. Yes, it was, and no, it wasn’t.

Coffee Break Topic: My Baby’s First Word Was “Google”

Coffee Break Topic: My Baby’s First Word Was “Google”

My sixteen-month-old son has been a chatty little guy since his first birthday. He has enjoyed repeating just about anything, but mostly “Mama, Dada, bye-bye.” And in those first months after his birthday, it wasn’t clear to us that he knew what he was saying. He didn’t say any of those words unprompted, or at appropriate times, he just chatted happily all the time. As much as he seemed to love babytalk, because he didn’t use words with purpose, we just weren’t sure that he was really talking. He also didn’t enunciate all that well.  So sometimes we’d listen to him and wonder aloud, “did he just say ball?” or, “snow,” or “book?”  It sounded like it, but we just weren’t sure.

Until one day several weeks ago, when he leaned toward our Google Home smart speaker and said, “Hey, Google!”

We couldn’t believe it. Of course at first we were overcome by the awe and wonder of The First Word. For the first time in his life, he had achieved clear communication. It was the undeniable, deliberate use of language. What a milestone! I could feel the tears in my eyes. I think it is a truly magical moment for every parent. But a split second later we looked at each other and there was the realization…..wait a minute. His first word was “Google!” And then we had to come to terms with the fact that this marvelous, unique moment was about the name of a corporation, and addressing a computer.

Well, here we are, America.

Over the following weeks we told all of our family and friends, and in almost every instance it was a great conversation-starter.  One thing I’ve noticed repeatedly over the last couple of decades is that even the most easy-going among us become extremely opinionated about how to raise a child, once they become parents themselves.  Almost everyone had something to say about my son’s first word.  No one came right out and said that it was bad parenting, but some conversations came dangerously close.  One common thread was surprise.

But the whole thing shouldn’t be that surprising, should it?  We have Google Home hooked up to our living room lighting. Every single morning of his life, my son heard one of us say, “hey Google, turn on the lights.” And then he watched the living room fill with light. And almost every day after breakfast, he heard me say, “hey Google, can you play ‘Mother Goose Club?’” or “You Are My Little Bird?” or [insert any children’s album title].

I did a little research and found out that we are not alone. Lots of parents are writing accounts on the internet about their babies’ first words being Google, Alexa, Echo, etc. It’s no wonder if you really think about it. Babies imitate their parents. Especially the things that they say on a daily basis.

Needless to say, the phenomenon is controversial.  And the obvious question is: is this a good thing or a bad thing?  One article states that if your baby’s first word is Google (or Alexa or Siri), you’re obviously using the word way too much.

But I don’t know if I buy that.  What’s inherently wrong with asking Google to turn on the lights, or play an album?  I know all parents feel this way, but I think we’re great parents.  My kids spend at least two hours of every day outside when it’s between 35 and 85 degrees. My 2½-year-old daughter is limited to a ½ hour of screen time a day, though many days she doesn’t get any.  They both eat wholesome, unprocessed home cooked meals, are treated with love and respect, and are happy, healthy, well-adjusted kids.  So who cares if Google is turning on the lights and playing music?  It’s just harmless fun, right?

I figure it’s a cost-benefit analysis, like anything else.  But these costs and benefits are not always obvious, and are subjective.  I know that many parents would be horrified by the idea of their baby’s first word being Google.  For two professional city-dwellers like us, it’s really not a big deal.  I suppose one ostensible cost is the missed joy and gratification of his first word being “mommy” or “daddy.”  But isn’t that insufferably egotistical, to need that kind of gratification from your child?  Thankfully I don’t feel slighted in the least.

Another arguable cost of the smart speaker in general is the fact that Google is probably gathering information about when we’re home, what music we listen too, what temperature we keep our home, and anything else it can.  It’s probably using it to figure out new ways to advertise.  We are well aware of this, and again, at this point in time, the fun of owning the device is worth the sharing of these seemingly inocuous data with Google.  Maybe one day we’ll feel differently, but as of this writing, we really don’t care.

In other ways, we’re actually very private people.  Our Facebook profiles have strict privacy settings.  We don’t put our kids’ photos or videos on any kind of media blast, opting instead for a small iCloud Photo and Video Sharing Group reserved for our closest family and friends.  We don’t publish our daily lives on Facebook either; we only post a few times a year.

At this point I don’t see much cause for alarm regarding our son’s first word.  Am I missing something?  Ever a fan of good dialogue, I plan to keep an open mind.  In any case, this is one debate that I believe will continue to grow and develop along with my son and his generation, and I have a feeling that the controversy over his unusual first word is only the beginning of it.

WHAT’S THE RIGHT ANSWER ON A JOB APPLICATION, POST-EXPUNGEMENT?

By Christina Papavasiliou

Many of my Record Clearing clients have called me months and even years after expungement[1] with the same question: what’s the right answer to a criminal record question on a job application? The question may be phrased in many different ways, but it often asks about arrests as well as convictions.

In Illinois, it is unlawful for employers to ask you about your expunged record.  In my opinion, that makes the question, “have you ever been arrested” illegal, because it demands a response from all applicants to disclose arrest information, even those who have received expungements.  Questions about convictions, however, may be legal, because expunged records can technically only contain non-convictions.

Most employment applications don’t ask about arrests.  If yours does, you DO NOT, I repeat DO NOT have to disclose ANY information about your expunged record.  You petitioned for an expungement and your petition was reviewed and granted by a judge.  As such, the law protects you from these questions.

So, what’s the right answer?  My best advice is, if your record has been expunged, to answer any and all questions with the following phrase.  “No arrest record.”

I’ve spoken to other attorneys who have advised clients that, if the application asks for information about arrests, the expungement recipient may write “N/A” in the answer field.  This is better, they say, because “No arrest record” sounds purposely evasive while “N/A” does not.

I prefer the answer “No arrest record” to “N/A,” only because “N/A” is arguably a lie.  The question asks (albeit possibly illegally) about an arrest, and you have been arrested.  The answer “No arrest record,” however, is a truthful and accurate response that reveals no protected information.

IMPORTANT: Please see my recent article entitled WHY LAWYERS DON’T TALK ABOUT EXPUNGEMENT.  In order for this protection to apply to you, it’s imperative that you truly do have an expungement, meaning that you or your lawyer completed a Petition for Expungement, filed it with the court, and the Petition was granted.  Dismissals and supervision pleas DO NOT automatically result in expungements.  If your Expungement petition is still in process and has not been granted by the court, the law may not protect your right to conceal arrest information.

[1] This article addresses this question with respect to expungements only.  With sealed felony convictions, it’s a bit more complicated.  That’s because there’s a long list of types of employers who are allowed to see sealed records.

 

My Guess Is that Daniel Biss Would Grant the Most Clemency Petitions, But it’s Very Hard to Tell

The most bittersweet aspect of my Record Clearing practice, by far, is the Petition for Executive Clemency. As I’ve previously explained, a Petition for Executive Clemency is a request of the governor to forgive or pardon a conviction, which pardon allows the petitioner to expunge a criminal record that otherwise doesn’t qualify.

I use the word bittersweet because working with Clemency clients is rewarding but heartbreaking. It’s rewarding because each one requires an in-depth interview of the client’s entire life’s story, and the weaving of that story into a narrative that presents a compelling case for clemency. People usually come to me with Clemency Petitions after a hard life that has been turned around, and these are people who care about their reputation in the community enough to do something about it. Getting to know them is almost always an honor and a privilege that leaves me with a deeper understanding of the every day faces of our criminal justice system.

On the other hand, they’re heartbreaking because, of all the record clearing petitions, they’re the most disappointing – especially in the years since Governor Rauner took office. Although he bragged late last year about “eliminating the backlog” of clemency petitions, he only granted 80 out of 2,333, which is about 3 percent. Rauner’s predecessor, Pat Quinn, granted more than a third of the nearly 5,000 cases that his office processed. That’s more than any other governor in history. Rod Blagojevich, in contrast, only acted on 1,000 of the 4,000 cases that were filed during his service as governor.  He left a backlog of 3,000 for his successor to deal with.

The governor’s office has complete, unbridled discretion, is under no time limit in which to act, and is not required to justify its decision in any way whatsoever. And it doesn’t. It is extremely frustrating for everyone involved when both lawyer and client have spent long and painstaking hours to submit a compelling, thorough, well-written Petition, only to have it rejected with no explanation. This is especially frustrating when the Petitioner has had no contact with law enforcement in decades, has been gainfully employed throughout that time, and has demonstrated sincere remorse for his offense. Why would such a person be denied executive clemency?

Well, the reason is that there is some political risk in granting these petitions, and very little political gain. If, after receiving a pardon, a petitioner were to commit a violent offense, the governor would face tremendous backlash. Is it worth it? I think it is. But that’s because I feel strongly about second chances, and I’m not trying to get elected or re-elected.

As election day rapidly approaches (and by that I mean, it’s tomorrow), I’m reading as much as I can about the democratic candidates to try to glean who is likely to grant the most clemency petitions. As a record clearing attorney, that’s who I will choose. But it’s a tough call. Year after year, lawmakers talk about the unfairness of our punitive system, and the vicious cycle of poverty that it causes. But very little is done about it. Executive clemency should be granted to all convicts who can demonstrate that they’ve overcome their past and stayed out of trouble.

Choosing among Pritzker, Kennedy and Biss is tricky, because all of the democratic candidates know that criminal justice reform is important to their base, and they are all paying the requisite lip service. But who would actually deliver if elected? So far the candidates have made very few statements about clemency in particular, amid the constant references to the importance of overall criminal justice reform.

Chris Kennedy has stated that he hopes to “reform the pardon process for non-violent offenders,” and that society should not focus on “continual punishment.” He hasn’t elaborated much, but that is a dead-on description of the philosophical reason for supporting record clearing. But will that philosophy actually manifest in the granting of petitions? It’s so hard to tell, because that’s the extent to which he has commented on it, as far as I know. And what about violent offenders? Non-violent offenders already have the option of sealing for most offenses. If people are petitioning for executive clemency as opposed to sealing, it is usually because there is a violent crime on the rap sheet. Kennedy makes a qualified statement, which makes him seem politically fearful to take a stand.

Although business executive J.B. Pritzker has talked extensively about criminal justice reform, he may be the candidate that has said the least about clemency specifically, or what he would do. One thing that does stand out about him, regardless, is his running mate. Juliana Stratton, a state representative from Chicago, has taken on the issue of statewide voting rights for prisoners. She has proposed House Bill 4469, which would put into place systems which would expand access to voting for inmates. An administration that cares about prisoner’s rights can be trusted to care about the process of granting clemency and to grant petitions when they make a good case. But that tells us nothing about the willingness of the governor to take the political risk of granting more clemency petitions.

State Senator Daniel Biss has stated that as part of his initiative to decriminalize marijuana, he will thereafter grant clemency to all of the convicts who would not have sustained convictions under the new law. That is a big promise. He has also made statements to the tune that he would be the least “politically frightened” to grant clemency and that he would like to review how governors view their clemency powers. He plans to use his clemency powers to address unfair sentencing. These are important promises, because they speak to the problem directly: if we believe that people deserve a second chance, more of these petitions must be granted. Furthermore, the claim that he is not politically frightened is refreshing, because he’s right about the fact that most candidates are.

I do expect that any democratic governor will grant more clemency petitions than Bruce Rauner. The question is, which one will grant the most? Taking each candidate at his word, I believe that Daniel Biss will grant the most petitions. Although Pritzker’s running mate seems very promising, the governor himself will have sole, unbridled, unaccountable discretion, and he just hasn’t made enough passionate comments about the issue. There’s just not that much information to work with, but Biss comes out on top by the skin of his teeth. Based exclusively on statements made by the candidates on the campaign trail, and between Kennedy’s political hedging and Pritzker’s silence, his bold promise seems to be the best option we have.

If we had instant runoff voting, which would solve a lot of this country’s problems, my lineup would be 1. Biss 2. Kennedy 3. Pritzker. But alas, we do not. And that, fellow citizens, is a subject for another day.

Why Criminal Lawyers Don’t Talk About Expungement

Why Criminal Lawyers Don’t Talk About Expungement

I’ve been practicing criminal law with a serious commitment to Record Clearing for about seven years now, and I can say without any hesitation that the amount of misinformation out there is huge.  I’ve had the same conversation with dozens of different people so many times, from all walks of life:

Johnny Q. Public: “I was arrested once a long time ago, but my lawyer cleared it up.”

Me: “What do you mean by cleared it up?”

Johnny: “We went to court and he got it dismissed.”

Me: “That’s good.  And then did he expunge the arrest record?”

Johnny: (Blank stare for a couple of seconds.) “He was in court with me.  He took care of it.  The judge said the case was dismissed.”

Me: “But did he file separate paperwork to expunge the arrest record?”

Johnny: “Hmm.  I don’t know.”

Me: “Did you receive letters from the Police Department and the State Police stating that your expungement has been granted and that your arrest record has been removed from their files?”

Johnny: “No.”

Me: “That means that it’s probably still on your record.”

Johnny: (faints)

Most people don’t know that arrests NEVER disappear from a rap sheet without a granted Petition to Expunge, EVEN after a case is dismissed.  If you were arrested and not prosecuted, a background check will reveal your arrest record.

There’s no question that a clean record is important, for so many reasons. For one, the criminal system is a slippery slope, and the police treat you differently when you have an arrest record.  On countless occasions I’ve encountered prosecutors who will refer to a defendant with multiple arrests as having “a long rap sheet,” even when it contained no convictions!  Similarly, most arresting officers will take a very different attitude toward a person with a long arrest record than toward the same person with a truly clean record.  The sad thing is, if the arrestee with the “long rap sheet” had completed the necessary paperwork, he could have received an expungement and had a completely clean record!

Even if you never encounter law enforcement again in your life, any arrest record at all will often prejudice an employer.  This is especially true when the employer has a tough choice to make between two equally good applicants.  Even hard-working people that haven’t been arrested in decades can easily face such prejudice.

When a Petition for Expungement is granted, the physical arrest record is removed from police files and from public record.  That means that your name no longer appears on background checks, and you are given a truly clean slate.

Unfortunately, however, many lawyers don’t focus on record clearing at all, for a very simple reason: it’s not very lucrative.  While most criminal work is billed on an hourly basis, record clearing generally consists of one or two relatively low flat fees: usually one for the filings and one for the court appearance, if necessary.  Sometimes the petition is granted without a hearing and the order is sent through the mail.

Another reason lawyers don’t focus on record clearing is that it’s somewhat complicated, and it’s always changing.  There are a lot of common red herrings and pitfalls.  Unless you know what you’re doing, you may end up filing the paperwork multiple times.  The confusion that I described above is common among non-lawyers, but it’s somewhat common among lawyers as well.  Most lawyers are aware that expungement is a process separate and apart from the criminal process.  But even some criminal lawyers aren’t all that familiar with the intricacies of eligibility.  A lawyer needs to maintain an ongoing interest in the changing law to stay informed on the way that the law defines convictions and non-convictions for purposes of expungement and sealing.

I take record clearing seriously because, as a former prosecutor and a Chicago criminal defense attorney, I know the difference that a clean record can make.  On a deeper level, I strongly believe that everyone is capable of overcoming the circumstances of the past and turning over a new leaf.  For that reason, I work hard to stay informed about changes in Record Clearing Law, and consider it to be one of the most important and rewarding aspects of my practice.

Types of Record Clearing Petitions in Illinois

TYPES OF RECORD CLEARING PETITIONS IN ILLINOIS

Expungement– When a Petition to Expunge is granted, the physical and electronic records with details of your arrest are actually removed from court and police files, and a search by law enforcement for any criminal history will yield no results.  This type of relief is only available “non-convictions.”  The definition of a non-conviction is complicated, and certain types of probation qualify as non-convictions.  Waiting periods apply in many cases.

Juvenile Expungement– Almost every type of juvenile criminal record can be expunged.  Waiting periods may apply, depending on the offense.

Sealing– Most convictions can be sealed.  Almost all misdemeanors are eligible for sealing, as well as many Class 3 or 4 felonies.  A new law in 2017 greatly expanded the types of convictions that are eligible for sealing.  Sealed records do not show up on background checks but are still available to law enforcement agencies.  Waiting periods often apply.  Sealing may come in handy if you are seeking a professional license during an expungement waiting period, assuming the expungement doesn’t require a waiting period.

Certificate of Eligibility for Sealing– For Petitioners who are otherwise not eligible for sealing, a single offense in a lifetime is available for recommendation by the Prisoner Review Board to the Circuit Court to order the sealing of a Class 3 or 4 Felony, excluding a long list of offenses including violent crimes, certain sex crimes and DUI offenses.  Waiting periods often apply.

Clemency– A Petition for Executive Clemency is essentially a petition asking the Governor to expunge your record when you don’t otherwise qualify for an expungement.  Petitioners have the option (and should almost always take it) to appear before the Prisoner Review Board and plead their case.  There is no time limit within which the Governor must act, and these petitions often take a year or more to be adjudicated.  An overwhelming majority are denied, and the Governor’s Office never provides any explanation for its decisions.

Pardon– A Petition for Pardon is the same as a Clemency Petition, but it is directed to the President of the United States and extends only to offenses recognizable under Federal Law.

Certificates of Good Conduct– Like Clemency Petitions, these Petitions are very rarely granted, because the state takes on liability for recidivism.  This type of relief excludes all Class X offenses.  Petitioner must demonstrate that he or she is law-abiding and fully rehabilitated.  Waiting periods apply.

Relief from Disability– This is for Petitioners who are seeking one of 27 professional state licenses (hyperlink: statute containing exhaustive list), for which they require a clean record.  No waiting period.

Health Care Waivers: – This type of relief is available to Illinois health care workers who were terminated due to a disqualifying criminal conviction.  Relief is granted by the Department of Public Health, and applicants are required to complete an extensive Health Care Worker Waiver Application (hyperlink).  A granted application permits an employer to rehire, but does not impose a requirement to do so.

ATTENTION!  This is general information that will not necessarily be updated regularly.  It is not legal advice.  Do not try to practice law without a license.  Don’t rely on information that you read on the internet. Your use of this information is at your own risk.