“determine the feasibility of classifying misdemeanor of- fenses as either ‘class A’ misdemeanors or ‘class B’ misde- meanors … [such that] ‘class B’ misdemeanors would be criminal offenses deemed non-serious and warrant assess- ment of a civil fine with no possibility of incarceration.” 136 Although the work of this commission has not yet begun, de- criminalization efforts are proceeding in Massachusetts. By general election ballot measure, the citizens of Massachu- setts recently voted overwhelmingly to decriminalize pos- session of small quantities of marijuana. The punishment for possession of less than one ounce of marijuana is now a fine of up to $100 and forfeiture of the drug. 137 In Lincoln, Nebraska, a formal assessment of the public de- fender office found the office was handling excessive case- loads and recommended that the city council undertake a review of ordinances to re-evaluate appropriate punish- ment. 138 Thereafter, the public defender proposed decrimi- nalization of a number of misdemeanor offenses, including dog leash and trespass offenses, to address rising caseload and budget challenges. 139 The state criminal codes are clogged with offenses that have little to no impact on public safety, but are nonetheless pun- ishable by imprisonment, triggering the full panoply of due process rights. Such crimes include feeding the homeless, rid-
ing a bicycle on the sidewalk, fish and game violations, and public urination. Every state should undertake a systematic review of misdemeanor offenses for the purpose of identify- ing offenses that can be decriminalized without substantially impacting public safety. If it is determined that an offense should be switched from a misdemeanor to a violation, it is critical to also review the collateral consequences that can result from a conviction. Often, the collateral consequences are worse for the defen- dant than the punishment for the offense. For a violation, a defendant does not have access to a defender to instruct him or her on the collateral consequences of a conviction. Under these circumstances, to impose harsh collateral conse- quences, like housing limitations, deportation, and em- ployment limitations would be fundamentally unfair. 2. Diversion programs should be expanded. Increasingly, diversion is seen as a practical alternative to full criminal court prosecution of minor offenses. The American Bar Association has urged “federal, state, terri- torial and local governments to develop, and to support and fund prosecutors and others seeking to develop, deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record for offenders who are deemed appropriate for community supervision[.]” 140 As noted above, driving offenses, particularly the offenses equivalent to driving with a suspended license, make up an extraordinary proportion of the misdemeanor caseloads in many jurisdictions. For this reason, Miami-Dade County, Florida began a diversion program called Drive Legal, which permits an individual to pay down the fines that re- sulted in the suspension of his or her driver’s license over time and/or through community service. 141 Similarly, King County, Washington, has a diversion and relicensing program. The creation of the program was a combined effort of The Defender Association, the King County prosecutor, the district court, and the county exec- utive and county council. In the relicensing program, which is available to individuals whose license has been sus- pended regardless of whether they have charges pending, the person is given an opportunity to pay the underlying fines that led to the suspension through community service or work crew. 142 If completed, the prosecutor dismisses the pending charges. In 2004, a consultant analyzed the program and concluded that, in the first nine months of operation, there was an 84 percent reduction in prosecution filings in driving with a suspended license cases and a 24 percent reduction in jail costs, with 1,330 fewer jail days. In addition, the program generated twice as much revenue than it cost, both in pro- ducing payments on tickets and in savings for prosecution and defense as well as jail. 143
28
Revenue
King County Relicensing
$270,000
Program Benefits
24%
Jail Costs
84%
DWLS Prose- cutions
1,330
Days in jail
Spokane, Washington, recently re-instituted a relicensing program. It had 340 graduates in the first three months of
Minor Crimes, Massive Waste
Made with FlippingBook Online document maker