The current landscape of collateral consequences of conviction, and the coming debate

Currently in Mississippi, felony convictions are like diamonds: they're forever.  There are a few rare exceptions, outlined generally in Section 99-19-71, that allow for expunction (often called "expungement") of records of felony convictions.  Currently, felonies which may be expunged include convictions for bad checks, possession of a controlled substance, false pretenses, larceny, malicious mischief, and shoplifting.  Of course, as always, there are many intricacies to the law, so you'd need to seek the advice of an experience criminal practitioner in order to make sure a particular conviction is eligible for expunction.

What that means is that all other nonviolent felony crimes carry enormous consequences, which will never go away.  First, you can no longer legally carry a firearm.  If a convicted felon is found guilty of carrying a firearm, the maximum sentence is 10 years.  Think about that for a second.  I'm sure we all know good people who made bad mistakes when they were in their late teens and early twenties.  Those folks can't go hunting without risking a decade in the penitentiary.  To say nothing of their inability to vote and their difficulty finding a job.

These "collateral consequences" of a felony conviction make sense in certain instances.  For example, we probably are justified as a society having a rule that people convicted of armed robbery don't get to carry handguns.  That makes sense.  But over the last few decades of being "tough on crime", we've created a situation in which we are making it more and more difficult for first time, nonviolent offenders to recover from the error in judgment that led to their conviction.

That's where the National Inventory of the Collateral Consequences of Conviction comes in.  Launched yesterday by the American Bar Association, it promises to be an invaluable tool for defendants, prosecutors, judges, and criminal defense attorneys.  I predict it will also have a collateral consequence of its own, however.  I'd bet that as the Mississippi information is added to the site, our politicians are going to be armed with the information to have a serious debate about how we treat citizens convicted of nonviolent crimes.  And I think that will be a good thing.

Read the companion post at Cottonmouth.

"Flight" jury instructions should be less frequent after States v. State

The case of Shawn States v. State is one with which I am somewhat, although not greatly, familiar.  In short, Mr. States was convicted by a Hinds County jury of capital murder for the killing of Antoine Reece and Justin Howard and taking credit cards belonging to the men, along with Reece's Jaguar. States was found in Miami with his girlfriend, who was about to be deployed to Iraq.  At trial, the prosecution offered a flight instruction, and Judge Swan Yerger gave that instruction to the jury.  That instruction would become the bone of contention at the Supreme Court.

Justice Jess Dickinson wrote the 8 vote majority opinion affirming the conviction, which found no error on States' first two issues.  The Court did, however, find error in States' third issue, albeit harmless. Dickinson begins the discussion of States' third issue thusly:

The reason for the lapse in publishing

I've been preparing for an oral argument before the Mississippi Court of Appeals.  I hope to resume criminal law blogging after that's over.

Sen. Will Longwitz's attempted murder bill

Earlier today, I suggested that Rep. Bill Denny (R - Jackson) take a different approach to tinkering with the offense of attempted murder in Mississippi.  My law school classmate Sen. Will Longwitz (R - Madison) offered up a bill along the lines of what I'd suggested in that post.  You can read that bill here.  In short, it amends the attempt statute and sets the penalty for attempted murder at 20 years to life.

Sen. Longwitz's bill died in the Senate Judiciary A committee.  We'll see if Longwitz's legislation has more luck next year.  I'm not ready to say it's a perfect bill, but it certainly is a better approach than Denny's, and should receive consideration if lawmakers want to address attempted murder.

Why Rep. Bill Denny's attempted murder legislation keeps failing

For over a decade now, Rep. Bill Denny (R - Jackson) has been introducing legislation that would purportedly create the offense of attempted murder in Mississippi. His attempted murder bills have died every year, including this year, even though his party is in complete control of the Mississippi legislative process.

On its face, the bill seems to make sense. If someone sets out to murder someone and fails because their intended victim lives, that's attempted murder. And traditionally, attempted crimes carry a punishment similar to the completed crime. However, in modern Mississippi criminal practice such crimes are prosecuted as aggravated assaults rather than attempted murders. That might lead you to think that we just don't have attempted murder in our statutes, and that we should rectify the problem by passing legislation like Denny's.

You'd be wrong.

Why "capital offense" doesn't mean what you think it means

You've no doubt heard of the terms "capital offense" and "capital punishment", and you probably assume that capital murder is the only capital offense, and that being sent to death row to receive capital punishment is the only outcome when someone is convicted of a capital crime.  And you'd have some basis for that assumption, as other states reserve the term "capital" strictly for crimes that can result in execution.  Well, not Mississippi.

Section 1-3-4 of the Mississippi Code of 1972 reads as follows:

The terms "capital case," "capital cases," "capital offense," "capital offenses," and "capital crime" when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term "capital murder" when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life.

That means that armed robbery, kidnapping, rape, and "simple" murder are all capital crimes in Mississippi, even though the maximum punishment for each is life in prison.

The above definition has multiple implications for the prosecution and defense of capital cases in Mississippi.  For example, a separate juror oath exists for capital crimes and for non-capital offenses. Failure to administer the capital oath may constitute reversible error in and of itself in a capital trial.  Perhaps most importantly for someone charged with a capital crime, Article III, Section 29 of the Mississippi Constitution of 1890 provides that "Excessive bail shall not be required, and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses where the proof is evident or presumption great."  That means that a defendant facing a capital crime such as armed robbery or kidnapping can constitutionally be denied bail if the judge finds "the proof evident and the presumption great."

Frontline focuses on forensic evidence tonight

I'll be on PBS's Frontline tonight in an episode entitled "The Real CSI."  The show will investigate problems with the science behind forensic evidence and how it is used in the courtroom.  I was interviewed for the program, and appear towards the end of the preview below.

Those of you who know me know that I've spent a good portion of my legal career trying to clean up Mississippi's death investigation system. As I said in my interview with Frontline, getting forensic evidence right is vitally important for two reasons. First, it prevents our society from putting innocent people in jail. And that's important when one of the foundational principles of our criminal justice system is Blackstone's statement that it is "better that ten guilty persons escape than that one innocent suffer." (This principle is even espoused as long ago as Genesis 18, in which God says he would spare the entire city of Sodom if ten righteous people can be found within it.)

The second reason getting forensics right is that when we do it wrong, killers remain free amongst us to strike again. Like Justin Albert Johnson.

Anyway, here's the trailer for tonight's episode of Frontline on PBS. You can watch it at 10 pm EST/9 pm CST.