Helping The DA To “See” The Impact Of Colorado Drug Convictions And College Applications

By H. Michael Steinberg – Colorado Drug Crimes Criminal Defense Lawyer

Helping The DA To “See” The Impact Of Colorado Drug Convictions And College Applications – All Colorado criminal defense lawyers know the reality of what are called “collateral consequences” of even the most minor criminal convictions such as minor drug related misdemeanors. Today the impact of what would otherwise be a minor conviction on employment, financial aid and admission to college and universities cannot be understated.

Almost all Colorado criminal cases and cases across the county resolve in a plea bargain. Few go to trial. The reality is it is the negotiating skills of your criminal defense lawyer that may make the difference in a great, good, or a poor resolution of your Colorado criminal case.

“Educating” The DA/Prosecutor As Regards The Impact Of Even Minor Drug Convictions On The Client

Having been a Career District Attorney for over thirteen years, I am keenly aware of the extreme pressures placed on prosecutors in performing their function. Now after more than 17 years as a criminal defense lawyer, I find that many defense lawyers do not take the time to understand the reality of the DA’s world and therefore fail to “reach them” in terms of giving them an understanding of the impact of a given case on their client’s life plan and the disparity of the impact of the case on their individual clients.

District Attorneys have an ethical obligation to treat like Defendant’s the same. This obligation is known as uniformity in disposition and result and it is essential to the performance of their job. It has been my experience that prosecutors and judges will respond to appeals to the court’s  responsibility to make certain their respective decisions are founded on notions of basic fairness and not result in disproportionate harm to Defendants appearing on criminal cases.

One codification of this responsibility is found in the American Bar Associations ethical rules addressing the function of the prosecutor. What follows is one of the key provisions of those ethical rules:

Standard 3- 1.2 The Function of the Prosecutor

(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.

(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.

(c) The duty of the prosecutor is to seek justice, not merely to convict.

(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.

(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor’s jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.

At times prosecutors are unaware of the impact of their decisions in the given case. It is the criminal defense lawyer’s duty and responsibility to identify, in the context of ALL cases, but these days, especially drug crime convictions, the long term effects of a conviction.

What follows are key stages and tactics that might be employed to accomplish that goal.

The Duty Of A Colorado Criminal Defense Lawyer – Identify The Outlines Of The Most Acceptable Plea Bargain

First – the criminal defense lawyer must investigate and document how this case will have a disparate or unfair impact on the client. For example, a drug conviction could automatically suspend a prospective student’s eligibility for Federal student loan assistance not to mention the young applicant’s admission to a good college or university.

After identifying the “normal” plea bargain offer for the given charge and circumstances, the lawyer will need to prove why that offer is not acceptable in this case. Proof identifying which criminal convictions will end any chance of Federal Financial Aid can be obtained from several online federal government sites. Also statistics of how many college applicants are rejected because of a conviction on their criminal history is also available through online research.

While there is no “right” to financial aid to pay for higher education or admission to colleges and universities, it is universally understood that the denial of higher education is the kind of “specific and severe consequence” that can and will result from a criminal conviction and that  impact is predictable.

The HEA – Higher Education Act And FAFSA

When applying for Federal Financial Aid the applicant must complete Question 35 of the Free Application for Federal Student Aid (FAFSA). The question forces the student applicant to disclose whether they have been convicted of any drug offense.

If the student answers “Yes” or even leaves the question blank, the student is automatically denied aid and in many cases, because of a lack of funds, a college education.

The ACLU describes the impact of the HEA, The Higher Education Act, as follows:

Students convicted for possession are automatically ineligible for aid for one year from the date of the first offense, two years from the date of the second offense, and indefinitely if convicted three or more times.

Students convicted for sale are automatically ineligible for aid for two years from the date of a first offense and indefinitely if convicted two or more times.

…

Students barred from receiving aid can regain eligibility only by completing a federally approved drug rehabilitation program—even if they are not addicted to drugs.

After Identifying The Collateral Impact Of A Drug Conviction…

The criminal defense Lawyer must determine what kind of plea bargain is “possible” and then “target” that plea bargain if it is within the power and authority of the DA and/or Judge. Seeking an immediate dismissal is nearly always an impossible and unrealistic result, but it may also be the only acceptable plea bargain for some clients. The failure to obtain a dismissal makes it much more likely that the case must go to trial.

Every client is different – his or her criminal history and personal circumstances must be weighed together in determining what are the outer limits of a possible plea agreement.

Finally, the old saying by Senator Tip O’Neil, “all politics is local” applies equally to the local court system. Some advice then – no matter what state you live in – always select a criminal defense lawyer who is well known and well respected in the jurisdiction where the case is pending because, as local lawyers and those that participate daily in the criminal justice system all know, criminal defense advocacy is “local and personal.”

A Duty Of The Colorado Criminal Defense Lawyer – In The Negotiating Process – Humanize The Defendant.

Every District Attorney will tell you, if they are honest, open and objective, that the first review of a file’s police reports leads to an almost visceral reaction, resulting from law enforcement officers who have authored most often what are clearly one sided reports, that the Defendant is a “bad person” deserving of harsh treatment.

The importance of telling the rest of the story – the client’s side of the story – to the DA in an attempt to reverse his or her opinion and to transform the client from the “criminal” outlined in the police reports to the person sitting in court, is of critical importance to a achieving a great result in any criminal case.

Attorneys – to know their clients well – must spend sufficient time with them and with their families to fully understand their lives and their present circumstances. It is important to stress that most prosecutors have almost complete and unfettered discretion to plea bargain their caseload. By telling the client’s story, the DA will begin to see the “Defendant” as a real person who is goal-oriented and accomplished and is a person with remorse for their mistake and who is at little risk to reoffend.

A Duty Of The Colorado Criminal Defense Lawyer – Help the DA And/Or Judge To Understand How This Case Will Have A Disparate Impact On Your Client

As noted – “educating” the DA (and/or a judge at sentencing) about the impact a conviction or an unfair sentence will have on the client’s life means directly talking to these individuals about the impact of that unfair plea bargain and sentence on that young person’s life. One corollary of that responsibility is to make certain the authorities understand how and why this case could have far reaching impacts on this Defendant – making certain they understand that this impact of this conviction is different.

A single plea bargain may effect two individuals similarly situated in a disparate and disproportionate way.

The stated goals and rules governing sentencing – (stated below) – address what should be the intent of every plea agreement and sentencing hearing  – that all parties be treated uniformly for the same crimes. Bu the uniformity of result requires understanding the person at risk. All Defendant’s do not have the same demographics.

Sometimes a disparate and disproportionate result can occur if the long term collateral consequences of a plea bargain impact one Defendant in s significantly more punitive way than another. Sometimes a relatively minor possession of marijuana conviction will prevent a young person from the chance to attend college. This result has life-long implications well beyond the fine or probation imposed at the sentencing hearing.

A Duty Of The Colorado Criminal Defense Lawyer – Restate And Identify The Purposes Of Sentencing – 18-1-102.5 CRS And Applying Those Outcome Goals To Your Client’s Case

The following stated purposes of sentencing under Colorado law – are useful in persuading the DA  and the Judge of how and why your case may be different:

§ 18-1-102.5. Purposes of code with respect to sentencing

(1) The purposes of this code with respect to sentencing are:

(a) To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;

(b) To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;

(c) To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses;

(d) To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders;

(e) To select a sentence, a sentence length, and a level of supervision that addresses the offender’s individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence; and

(f) To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices.

One of the most powerful tools in the criminal defense lawyer’s arsenal is using the goals of sentencing law as an offensive and persuasive weapon.

The goals of sentencing include the need to reintegrate and rehabilitate the accused in a way that would allow a young person a second chance to achieve a successful future and ultimately becoming a law-abiding and productive community-member. An education is key to that goal.

Summary

It is scary to think that “kid stuff” such as possession of small amounts of personal use marijuana, leaving a restaurant without paying, jumping a turn style in a subway, public urination, stealing a pumpkin from a pumpkin patch, lying to a police officer at a traffic stop by giving a false name (criminal impersonation, false information to a police officer), and the like, … could end, before it even begins, a possible successful career as an adult….but there it is. Every case must be viewed in the light of the effect it can have on the future of our young people.

Helping The DA To “See” The Impact Of Colorado Drug Convictions And College Applications

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Never stop fighting – never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Helping The DA To “See” The Impact Of Colorado Drug Convictions And College Applications.