Long Island criminal lawyer Scott J. Limmer

Massachusetts Top Court Okays Requiring Drug-Free Probation

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Can a court make a probationer’s staying drug-free a condition of staying out of jail on probation, even if the probationer is already addicted? The top state court in Massachusetts recently answered that question with a resounding “yes,” rejecting a challenge claiming it was cruel and unusual punishment to stiffen probation terms for a such woman who had tested positive for drugs, and disappointing some advocates who had hoped the case might reshape that area of the law.

But the Massachusetts Supreme Judicial Court’s unanimous 27-page decision in Commonwealth v. Julie A. Eldred on July 16 rejected the claim that it was unconstitutional to require a drug addict to stay off drugs in order to stay on probation.

Julie Eldred started using alcohol and marijuana at the age of 14. Ten years later, she had been diagnosed with a severe substance use disorder, and faced larceny charges for stealing jewelry from the home of a client whose dog she walked, and selling the jewelry to support her heroin habit.

Never having been in trouble with the law before, she got probation from the trial judge, on several conditions, including having to go to drug rehab, and stay drug-free while on probation, as verified by random drug testing.

Although her outpatient rehab program prescribed buprenorphine (sold under the tradename Suboxone), a drug to fight opioid cravings, less than two weeks after starting the program, Eldred tested positive for fentanyl, the highly addictive synthetic opioid. Relapse into drug use is very common, even for patients have undergone complete detoxification for opioids; one study found a relapse rate of 88%.

Backing Eldred’s appeal of her further tightened probation terms (she was ordered to an in-patient rehab program) was a variety of medical, psychiatric and civil liberties groups, many of whom cited the 1962 U.S. Supreme Court case of Robinson v. California, which disallowed as unconstitutional a state law making it a crime to be have the status of being “addicted to use of narcotics.”

The defendant and some supporting groups argued advances in brain science showed persons with substance use disorder are unable to stay off drugs. So Eldred was being punished, they argued, for having a brain disease leaving her unable to do something (refrain from drug use) which her terms of probation required her to do.

Since relapse was a predictable part of Eldred’s recovery, they contended, it was unconstitutional to revise her probation and send her to jail until there was an opening for in-patient rehabilitation (which Eldred had initially rejected, but accepted after being jailed for ten days).

Massachusetts and some other advocates disputed that model of addiction, and argued judges considering probation terms needed the greatest possible flexibility to protect defendants and the public from the dangers of their conditions.

The top Massachusetts state court also ruled the Robinson case was not applicable, since Eldred’s case involved illegal actions, not merely a criminalized status. The decision did not reach the controversy over whether substance abuse disease removes a drug user’s free will (an argument very likely to continue being made elsewhere); instead, it found that every stage of the probation process had been properly handled and reflected legitimate state interests.

 

Long Island criminal lawyer Scott J. Limmer

New York’s New Law on Sealing Criminal Records: How It Works, What It Covers

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The New York state legislature passed, as part of the 2017-2018 budget bill, a new section 160.59, titled “Sealing of Certain Convictions,” which amends the state’s criminal laws. Governor Andrew Cuomo signed it on April 10, 2017, and the new law will take effect 180 days later, on October 7, 2017, and will apply to criminal record searches from that date forward.

Once the new law is in effect, it will allow many people with criminal convictions dating back at least 10 years to apply to have the record of those convictions sealed (i.e. not open to the public generally, but only to specified persons, and only for uses allowed by the new law). The new law, backed by Gov. Cuomo, is intended to help persons with a record of criminal convictions gain wider access to opportunities for employment, housing and other benefits.

By the effective date, the chief administrator of New York will create a form for use by applicants seeking to have their old criminal convictions sealed. An applicant will not be required to use that form, but any application must include all the information that the form requires.

The applications will be submitted to the court in which a conviction was entered. The new law can be used to seal a single felony conviction, a felony and a misdemeanor, or two misdemeanors. If sealing is sought for two eligible crimes, the application must be submitted to the court which entered a felony conviction. If sealing is sought for two misdemeanor convictions, the application must go court where the more recent conviction occurred.

 

Who Can Apply, and For What Crimes?

The new sealing law covers convictions at least 10 years old. The time starts from the date of conviction, except for applications filed by a convict who is still incarcerated; in that case, the time starts from the date the applicant is released.

There are lifetime limits on the number of criminal convictions that can be sealed. Only a single felony conviction can be considered for possible sealing, although an application can be sought for both a felony and a misdemeanor, or for no more than two misdemeanors.

The conviction sealing process is not available for certain types of convictions. These include:

  • Crimes for which a conviction requires the defendant to register as a sex offender
  • Crimes for which the required 10 years has not already elapsed
  • Crimes exceeding the allowable maximum number (e.g. a second felony or a third misdemeanor)
  • Crimes exceeding the maximum allowable for defendants under judicial drug diversion programs (as specified in 160.58 of the New York penal code)

In addition, applicants will be ineligible if they:

  • Are currently facing any additional charge
  • Have been convicted of any crime after the date a conviction was entered for the last conviction for which sealing is requested
  • Fail to provide the court with the required sworn statement of their reason for seeking the sealing

A future article will describe what an application for sealing a conviction must include, how it will be processed, and the criteria upon which applications will be judged.

 

The Bipartisan Federal Safe Justice Act, H.R. 2944

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On June 25, a political odd couple of House Judiciary Committee members Reps. Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA) joined to co-sponsor a far-reaching bill to revamp the nation’s criminal justice system: the Safe, Accountable, Fair and Effective (SAFE) Justice Act (H.R. 2944). The bill’s 37 other co-sponsors to date, evenly divided between the two parties, include all six Democrats plus two Republicans besides the chairman on the House Judiciary subcommittee Sensenbrenner leads, and to which the bill has been referred.

The SAFE Justice Act grows out of a Congressional task force which had been studying how inflexible and outmoded features of the current justice system — particularly mandatory sentencing laws bringing stiff sentences for lower-level drug offenses — over-criminalize some offenses and cause crowded prisons. As backers of the new bill point out, over the past three decades, the U.S. prison population has grown fourfold, with a nearly six-fold cost increase, when inflation is taken into account.

The SAFE Justice Act aims to reverse the recent legislative trend towards ever-greater mandatory minimum sentences and offer greater support for programs to deter recidivism. It would reduce sentences and increase alternative disposition for low-level, non-violent crimes, especially federal drug offenses (which account for the largest share of federal incarcerations, while the largest portion of inmates in state jails are there for violent crimes).

The Sensenbrenner-Scott bill points to “smarter justice” reforms made in recent years by many states, which have generally been trimming both crime and incarceration rates, through such changes as diverting first-time non-violent offenders away from the criminal justice system.

The new bill would also: authorize federal courts to create alternatives, like the drug courts many states have set up, for lower-level offenses; encourage probation and other non-prison dispositions for first-time, non-violent offenders; limit mandatory maximum sentencing to major crimes; and for good conduct reduce jail terms for most offenses by up one-third, and the length of probation by up to half.

The bill also tries to slow the creation on new criminal offenses (backers claim 2,000 have been added to the federal criminal code since 1980); requires individualized rehabilitation plans for federal prisoners; and mandates fuller, quicker disclosure of police and prosecutor files to requesting defendants. Some of the expected savings from the bill (supporters estimate this at $200 million annually) would go to bolster local police forces.

A diverse group of backers are supporting the SAFE Justice Act, including both liberals (such as the NAACP) and conservatives (like the American Conservative Union’s Center for Criminal Justice Reform). Another unlikely pairing, the executive director of the American Civil Liberties Union and the general counsel of Koch Industries, known for its support of conservative causes, in a joint op-ed extolled the bill as “an important step” towards fixing the nation’s “ballooning, costly and ultimately unjust federal sentencing and corrections system,” which they say “needlessly throws away lives and decimates entire communities.”

President Obama in July staged a number of events to call attention to criminal justice issues, delivering a short videotaped message from the White House, speaking on the topic at the NAACP convention in Philadelphia, and visiting a federal prison in Oklahoma. The Administration has not yet advanced its own proposal, but the president has called for Congress to act.

Two House committees Judiciary and Energy and Commerce) will consider H.R. 2944, and House Speaker John Boehner has said he supports bringing the bill to a vote on the House floor. No counterpart bill has yet been introduced in the Senate, but key members of the upper chamber say they have been working on sentencing and corrections reforms and expect to offer a proposal soon.