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Felony – The Scarlet F

| August 31, 2017

Imagine this: You’re 18 years old, out with a couple buddies, experimenting with marijuana and you’re arrested and charged with a felony. Or worse yet, maybe it was “wax” or “oil”—both concentrated marijuana derivatives that are treated even more harshly under Arizona criminal statutes. You’re not a drug addict or a dealer—you’re just a kid. You recognize your mistake, go to court, plead guilty, serve a probationary period without blemish and move on with your life. Fast-forward a year. You want to go to college and the application asks about felony convictions—answer: Yes. Fast-forward 4 years: You’re applying for a job you are well-qualified for, but this application also asks about felony convictions—answer: Yes. You’ve done what you’re supposed to do—paid your debt to society. Yet, years later your poor decision still negatively impacts your life.  Schools turn you away. Employers refuse to hire you. Apartment complexes don’t think they can trust you. These are real problems encountered every day by Arizonans. The collateral consequences of “felony stupidity” that often results in no harm and no victims are life long. Is that justice?

Arizona’s Fair Justice Task Force is asking just that. (I sometimes laugh at the name “Fair Justice.” Isn’t all justice fair and if it weren’t, wouldn’t it be injustice?) The task force has formed a sub-committee to examine the consequences of the scenario described above and many others similar in nature. The sub-committee, comprised of prosecutors, judges, defense attorneys, court clerks, probations officers, and . . . me, is examining A.R.S. 13-907 with the goal of amending it to help those in situations like the one above.

A.R.S. 13-907 currently allows a defendant who has completed probation and been discharged from all sanctions to have his conviction set aside and vacated. That sounds great; however, as a practical matter, the current law does nothing. A person who’s had their conviction set aside pursuant to A.R.S. 13-907 is still required to disclose his felony conviction. At best, the court order that sets aside the sentence can be used to help prove he repented for his youthful indiscretion. But that only works if a school, employer, or apartment complex doesn’t first throw the application away without asking.  The good news is that most Arizonans believe that a youthful felony shouldn’t plague someone for life. That’s why our sub-committee is working towards draft legislation that closely follows the innovations of Texas, Mississippi, and Louisiana to create a sealing or expungement procedure so, when deserving, futures are not destroyed by the “Scarlet F.”

With any luck the Arizona legislature will take up the issue in 2018 and, in the right situations, allow the “Scarlet F” to fade from sight so futures can burn bright.

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KURT ALTMAN became a signatory for Right on Crime in early 2016 and recently more fully joined the reform movement, promoting Right on Crime’s policies in the State Houses of Arizona and New Mexico. He has nearly 24 years of criminal law and Constitutional litigation experience. As a former Deputy Maricopa County Attorney and Assistant United States Attorney, Kurt has conducted literally hundreds of felony jury trials and lead investigations of criminal conduct ranging from homicide and capital cases to complex white collar matters. Formerly, as a member of the Department of Justice, Kurt earned the Director’s Award, the highest honor bestowed upon Department of Justice lawyers, and has twice received the Federal Bureau of Investigation Director’s Award for his tireless efforts on behalf of FBI-conducted investigations. Since 2008 he has operated his own practice defending the accused in criminal matters of all varieties also ranging from homicide to white collar.

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