Economic impact of crime ripples through families

Wednesday, December 4th, 2013 

 

Jo-Ann Wallace

This story is being co-published by The Lens in New Orleans.

A few years back, a young woman named Delisalynn took a walk to the corner store. She was with her sister, who lives in the New Orleans East neighborhood, and their route happened to take them past the house where Delisalynn’s ex-boyfriend lived. The young man was outside, with his new girlfriend. Delisalynn exchanged words with her former partner; it got heated. As she tells it, she and her sister left, and continued on with their errand. When they got to the corner store, the new girlfriend was waiting, with the police. She accused Delisalynn and her sister of slashing the tires on her ex’s car, something Delisalynn denies doing. She was arrested on the spot. At the precinct, she was told that the misdemeanor charge, of criminal damage of property, carried a sentence of up to six months in prison upon conviction. 

“I had a 3-year-old at the time, and I did not want to go to jail,” Delisalynn said in an interview. She says both prosecutor and public defender told her that if she pleaded guilty she'd avoid a six-month sentence, so she did. 

“Me being young, I just pled guilty,” she says, even though she says she had not committed the crime. “All I knew was that I had a daughter, and I had a job. I could not do six months in jail.” What she didn’t know, and what she says no one explained to her, was that the misdemeanor conviction would stick with her forever. In the few minutes in which she spoke with the public defender representing her, the lawyer didn’t mention that, Delisalynn says , in the few minutes they spoke — and in any case, the conversation took place after she had accepted the plea deal. Delisalynn asked to be identified only by her first name, a sign of the stigma that can accompany a criminal record.

"Life-changing impacts that don't only impact the person, the individual, but families and children."

–Jo-Ann Wallace
National Legal Aid and Defender Association

Public defenders nationwide are often overwhelmed and underfunded, juggling dozens or hundreds of cases. Despite Gideon v. Wainwright, the 1963 Supreme Court decision that grants lawyers to people who can’t afford them, it’s not uncommon for criminal defendants to take a plea with minimal input from an attorney. Or none at all. 

“Fifty years after Gideon, the fact of the matter is that people wind up with convictions all across the country without ever talking to a lawyer,” says Jo-Ann Wallace, president of the National Legal Aid and Defender Association, which advocates for access to justice in the civil and criminal courts. 

Lawyers often see the criminal and civil courts as two separate entities, but for people caught up in the legal system, the problems often bleed from one arena into the other. Having a bad lawyer, or an overwhelmed one, can result in a felony conviction rather than a misdemeanor, or a plea deal rather than a trial. Those missed opportunities can have economic and social ripple effects that last far beyond any prison sentence. 

“We are talking about employment licenses, employment consequences, immigration consequences, housing,” Wallace says. “Life-changing impacts that don’t only impact the person, the individual, but families and children.” 

 

 

An estimated 65 million Americans — more than 1 in 4 — have a criminal record, according to a 2011 report by the National Employment Law Project. With a criminal record, it can be hard to find a job or an apartment, and life is hard without income or housing. And if money struggles land someone in civil court, there’s no right to a lawyer at all. 

An economic death sentence

“There are a lot of people who have done one stupid thing and been caught for it when they are youth,” says Ed Monahan, the chief public defender in Kentucky, “and they have this economic death sentence around their neck.”

The implications of a criminal record vary from state to state, with layers of penalties imposed at the federal and state levels. A criminal record can affect housing, employment and educational opportunities. People convicted of drug crimes or sex offenses can be barred from public housing or receiving Section 8 housing vouchers. Private landlords can refuse to rent to people with a criminal record, and employers are under no obligation to hire them. Many states limit the licenses available to people with felony convictions, from hunting to plumbing to selling theater tickets. 

“There are so many consequences out there, it’s difficult even for competent counsel to even know and identify what all those consequences are,” says Miriam Aukerman, a lawyer with the ACLU of Michigan who focuses on prisoner re-entry. “It’s this enormous universe.” If a defendant’s counsel is unprepared or overburdened, it becomes almost impossible to accurately assess the person’s choices and the long-term impacts of those choices. 

Overburdened counsel is the national norm among public defender offices. In Kentucky, Monahan puts the average defender caseload at around 500 a year, with about 30 percent felony cases, 70 percent misdemeanor. “That’s just more cases than someone can competently do,” he says. In Miami, Chicago and Atlanta, defenders handle more than 2,000 misdemeanor cases per year, according to a 2009 report by the National Association of Criminal Defense Lawyers. In New Orleans, where Delisalynn lives, part-time public defenders carry almost the equivalent of 19,000 misdemeanor cases per lawyer, which translates to about seven minutes per case, the same report found. The nationally recommended standard is 400 misdemeanors a year per attorney. 

In Michigan, where Aukerman works, the public defense system is notorious. The ACLU of Michigan spent five years suing the state, alleging that it was violating the constitutional right to counsel in criminal cases. A scathing 2008 report found that Michigan “fails to provide competent representation to those who cannot afford counsel in its criminal courts,” and that while the quality of counsel varies from county to county, none of the defender systems surveyed were “constitutionally adequate.”  In July, Gov. Rick Snyder (R) signed into law a bill that advocates hope will bring about long-sought improvements in public defense in Michigan. 

Among other provisions, Michigan’s new law may soon provide better counsel to poor people in criminal court. But even an informed lawyer can struggle to appreciate the full range of impacts from a conviction. And for many people in Michigan and beyond, it’s already too late. 

“Every day somebody walks in this door and says if I had known what I know now about the consequences of the charge, I would have taken it to trial and tried to prepare a defense,” says Monica Jahner, who works with a re-entry program in Lansing, Mich. “You don’t ever get to go on and be a normal citizen, if you’re convicted of a felony,” she adds. 

Melissa Anders, M Live

Monica Jahner campaigns to remove questions about criminal history from employment applications.

It’s worth noting that a felony isn’t what most people think it is. A felony charge is not confined to rape, assault or murder cases. Many drug possession charges — even of relatively small amounts for personal use — are felonies. Stealing a purse often results in a felony charge. Graffiti that causes damages in excess of $1,000 is a felony

In Michigan, welfare fraud over $500 is a felony, too. Fraud is a crime of intent, explains Lynda Krupp, a lawyer at Detroit’s Legal Aid and Defender Association. In theory, that means the prosecutor has to prove that the person meant to defraud the government. But that rarely happens, she says. While some people are trying to scam the system, Krupp says the vast majority of the fraud cases are accidental: With check amounts changing constantly as benefits and lives shift, it’s easy to mistakenly cash a check for more than you’re supposed to get. 

Krupp had an elderly client recently who was working part time — and part-time work, she says, is often where things go awry. The woman had documented all her income and sent in the proof, but a worker at the welfare office made a data entry error, and the woman was accused of defrauding the system. Krupp urged the agency to double-check the woman’s file, where her reported income was found. It was a near miss. 

More often, Krupp sees clients on the other side of the welfare fraud hearing, after they have a felony conviction. She is one of the few public lawyers in Detroit who helps people get their criminal records expunged. It’s a time-consuming, exhausting, intricate process. People unfamiliar with the process might think someone can handle the case alone, Krupp says, but even the trained attorneys run into problems, sometimes just to schedule an initial hearing. “We just reflect on how there’s no way the client could have done this themselves,” she says. With lawyers, they’re doing fine. Of about 500 cases her project has handled, only three expungement requests have been denied, and those cases are being appealed. “It’s a very small percentage that don’t get them, and I think it’s because they’re standing there with an attorney,” she says. 

Krupp has far more cases than she can possibly handle, even with help from volunteer lawyers. Her office’s budget was cut 40 percent in December 2011, and Krupp lost a big chunk of her funding and staff. Because expunging a record is a civil matter, people are not entitled to representation on the public dime. 

With lawyers, they're doing fine. Of about 500 cases her project has handled, only three people have been denied expungement, and those cases are being appealed. “It's a very small percentage that don't get them, and I think it's because they're standing there with an attorney,” she says.

Krupp has far more cases than she can possibly handle, even with help from volunteer lawyers. Her office’s budget was cut 40 percent in December 2011, and Krupp lost a big chunk of her funding and staff. Because expunging a record is a civil matter, people are not entitled to representation on the public dime. 

Nationally, resources for expungement are scarce.

adrienne_wheeler

Photo by Marta Jewson/The Lens

Adrienne Wheeler is the director and co-founder of the Justice and Accountability Center, which helps Louisianans pursue expungements.

“There’s not a lot of us,” says Sally Friedman, legal director of the Legal Action Center, a nonprofit group that helps New Yorkers who face discrimination because of their criminal records. In New York City, Friedman says, “a handful” of legal services providers provide expungement services. Outside of the city, for people in rural areas and upstate New York, she notes, there are very few. And the need is intense. “I sit 10 feet from our receptionist, and our phone rings all day,” Friedman says. 

In Louisiana, few free attorneys are working on the issue, and not even many private lawyers, says Adrienne Wheeler, director and co-founder of the Justice and Accountability Center, which helps Louisianans pursue expungements. When people try to go it alone, she says, they can spend $350 to $775 in fees, only to have their petitions refused because of errors. 

Corey Yates tried to navigate the system on his own, but, he says, “I didn’t know the first things to do, or any order of the process.” Yates had pleaded guilty to two counts of marijuana possession in Baton Rouge in 2005 and 2006. Like Delisalynn, he says his lawyer never mentioned the long-term impacts of his plea. Unlike Delisalynn, Yates hired a private attorney. It didn't help. “I thought that after I was finished with my restitution and my probation, it was going to be OK. I wouldn’t have any problems gaining employment,” he says. “But unfortunately that wasn’t the case.” Yates crisscrossed Louisiana seeking work, even traveling to Texas and Virginia. Only after learning about the expungement services of the Justice and Accountability Center, and getting one conviction cleared from his record, was he able to find a job. He is currently seeking expungement for the second conviction. 

A two-fold solution

The enormous demand for expungement highlights the crossover between the crisis in indigent defense and the crisis in civil legal services. People who can’t get a job because of a criminal record or can’t find affordable housing because landlords won’t rent to them may well find themselves in the civil courts, facing eviction, debt collection or wage garnishment. If they do, they’re almost certain to confront that case without the benefit of an attorney. The lender will be represented by counsel, and most landlords will be, too. The collection action can destroy a credit record; the eviction can lead to homelessness. Options constrict further. Of those who seek to clear their criminal record, finding a lawyer to help with that is another struggle. 

Ultimately, Krupp thinks the solution is twofold: more support for expungement and other civil legal services, and better representation in the initial criminal cases. In many misdemeanor cases in Michigan, there is functionally no representation at all, according to the 2008 report by the National Legal Aid and Defender Association.  While the system may improve under the new state law, it is likely to be years until any changes take effect. 

“I think the reality is that if there were more resources on both sides of the aisle, it would help the justice system generally be more effective,” says Wallace, of the National Legal Aid and Defender Association. “It is often the civil community dealing with the consequences of the collateral consequences.”

Lawyers who understand the relationships between criminal cases and civil matters can make an enormous difference, Monahan says. On many low-level felonies, he explains, a good attorney can get a case diverted out of the courts or changed to a misdemeanor, particularly if the lawyer can make the defendant’s story come alive for a judge. Such a reduction in charge “can change the economic realities for that individual for the rest of their life,” Monahan says. However, spending enough time with the defendant to become familiar with the person and the alleged crime is a luxury few public defenders have. 

When someone comes home from prison, “it can be very difficult for them to find work,” says Russ Marlan, spokesman for the Michigan Department of Corrections. And, he notes, finding stable employment is key to avoiding a return to prison. The state tracks parolee employment, and “unfortunately, it’s not going in a positive direction,” Marlan says. The state has launched a new training initiative for prisoners, providing focused vocational education in partnership with local employers, in hopes of reducing unemployment once the prisoners rejoin society. Louisiana also has vocational programs for prisoners in state prisons and local jails, with new initiatives launched in 2002 and 2009. Nonetheless, almost half of all Louisianans leaving prison will return within five years

“If somebody has committed a criminal offense that’s low level, we can do things to either increase the chances that that person will never be successful in the future, or we can increase the chances that they can turn things around,” Monahan says. “That’s the choice we have on these low-level offenses.” 

“Putting a scarlet letter of a felony on their forehead is counterproductive,” he says. Right now, Monahan says, we’re “putting handcuffs on them and shackling them and then asking them to run like other people.”

Monica Jahner knows what that’s like. She served 28 years in prison for her role in the attempted murder of her stepmother and was released in 2007. Today she works for a re-entry program for former inmates in Lansing, Mich. Recently, students at Michigan State University organized a fundraiser for Jahner’s group, selling food at an MSU basketball game. She was told she couldn’t participate in the fundraiser, she says, because of the felony on her criminal record.

“They would not let me volunteer. I can pay and buy tickets at the event, but I can’t volunteer,” Jahner says. “Nobody ever told me that would be a consequence.”

Delisalynn, the young woman in New Orleans, realized the implications of her plea within days. She had interviewed for a position as a 911 dispatcher and was scheduled to take the final test in the process shortly after the confrontation. 

“They called me and were like no, don’t come in,” she says. “That hurt me to the core. He said to me that I would never get that job.” 

Upon reflection, Delisalynn says, “In the short term, it was like, pleading is the easy answer.” Since her arrest in 2010, she has had only two jobs, both in low-level customer service. Each time she fills out an application, she is reminded of her decision to take a plea. Some job applications ask whether a candidate has been convicted of a felony; others ask if a person has been convicted by a court, which includes misdemeanors. 

“I don’t like having to check that box. It hurts me to check that box.”

One 2010 survey found that 90 percent of employers conduct background checks on prospective workers, which reveal both felony and misdemeanor convictions. A measure under consideration in New Orleans would eliminate the box in which applicants for jobs in city government are required to place a check mark indicating whether they have a criminal record.

Delisalynn now lives outside of New Orleans, a move she made in pursuit of work. She is working with the Justice and Accountability Center to get her record expunged. Like Yates, she tried to clear her record on her own, she says, but found the process confusing and intimidating. It’s also expensive. Even with a free lawyer from the center, the expungement will cost $450 in fees, of which she is borrowing half. 

“It’s still not easy,” she says. “But I want better for myself.”

Yates has seen the impact an expungement can have, and he wants to help others take the same step. “Everybody makes mistakes,” he says. “And if there’s somebody else out in the world that was going through what I went through, I would want to be an extra voice for them.” 

This version has been updated to reflect additional information about Louisiana and to add that "more than" 1 in 4 Americans have criminal records.

Reporter Samantha Sunne contributed to this story.

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