Felony Defense in the U.S - Research Paper Example

Felony Defense in the U.S The United States as a leading democracy, anchors its rule of law on the supremacy of its Constitution, through various laws, rules, regulations and statutes. All these are core to the day-to-day running of American affairs, as well as enabling a peaceful social order. In the U.S., while federal laws hold supreme, as anchored in the constitution, state law is also important in both its distinction and role-function. Thus, in each state, crime and criminal activities are distinguished into specific categories, as influenced by their seriousness, cause-effects and social implications, amongst others. In each state, crimes are hence distinguished into three distinct categories, which are inclusive of infractions, misdemeanor and felony. The distinction made, about the classification above, is usually the work of existing state legislators. Determination is usually focused on such issues as social impacts (on the affected victims and society in general), and the crime’s seriousness. This classification differentiates between the seriousness of the crimes, with infractions being the least serious, while felonies regard the most serious of crimes (Bergman & Berman, 2013). Infractions, are also known as violations or petty offenses, pertain to acts/ actions which are punishable by way of small fines; as they cannot result in either probation or jail sentences. An example would be a speeding ticket given to individuals for minor violations. Misdemeanors, as Dau-Schmidt (1990) alludes, regard those offenses, which are punishable in terms of jail sentences, as well as fines, community service, restitution and probation. Unlike infractions, in misdemeanors, defendants are entitled to jury trials, thereby necessitating legal representation that is provided by the government. Classification is also present within this category, in terms of degree or class with serious actions being defined as gross misdemeanors. Felonies are by far, the most serious of criminal offenses, typically involving the presence of threat of harm or serious physical harm. In addition, these may also be inclusive of fraud schemes and white-collar crimes also. To be noted is that second-time offenders of misdemeanors can necessitate their trials to be elevated into felonies, hence resulting in punishment that is more serious. Such punishments, are influenced by the degree or class of the felony thereby distinguishing the range from one year (for minor felonies), to life without parole for more serious offenses. The most serious of felonies i.e. murder, can even result in the imposition of the death sentence, as witnessed in a number of states. thus, a felony as characterized under existing state statutes and federal law, regards and offense, which is punishable by way of imprisonment (in excess of an year), and even death sentencing (Dau-Schmidt, 1990). The Crime of Felony: Characteristics and Implications Described under early common law as crimes involving moral turpitude, these are usually in violation of prevailing social moral standards. Later on however, there was inclusion of other forms of crimes, not involving moral turpitude into this definition. Various state statutes thus list different felonies in commensurate measure, to the gravity of such offenses. Included in this categorization, are such crimes as: - burglary, robbery, kidnapping, arson, treason, kidnapping, rape, tax evasion and murder. Those individuals, who are charged with such crimes, are known as felons, with the characteristics of such offenses being either non-violent or violent in nature. The classification of crimes may be either misdemeanors or felonies, depending on the prevailing contexts. In terms of common law, those implicated in felony charges are divided into four core categories: - first-degree principals; second-degree principals; accessories before the fact, and accessories after the fact. First-degree principals are individuals who are implicated as having actually committed the acts/ actions in question (Chapin, 1989). Second-degree principals, abettors and aiders are those individuals charged with being present at the crime scene. Accessories before the act, in addition to abettors and aiders, are individuals who aid the principal(s), before the eventual criminal event takes place. Lastly, are accessories after the act, who are individuals having aided the principal, after the occurrence of the criminal event. As showcased in various national laws and constitutions, all forms of felonies are and remain serious crimes. However, as Fletcher (2000) portends, there exist concerns of proportionality; with regard to punishments fitting the crimes committed. Standards vital in the measurement of the seriousness of such an offence include: - the number of attempts, which enable the quantitative estimation and subsequent comparison of the crime’s effects not only upon the specific victims affected, but also the general society at large. Different states have varying numbers of classifications, as well as corresponding crime forms, which are usually determined by the sitting legislature. This body, is also influential in the determination of maximum allowable punishment with regard to each given felony class. This in turn aids in the avoidance of the necessity of defining specified sentences for all possible forms of crime. Various states do have differing classification of felony, with New York State classifying various felonies by letter i.e. Class B, C, D. In addition, is the presence of some classes being further divided into sub-classes, by Roman numerals i.e. A-II up to A-I (the most severe). The state of Virginia, on the other hand, classifies cases through numerical numbers, i.e. Class 6 (least severe), down to Class 1 (most severe). In addition is the presence of some felonies being outside the system of classification (Fletcher, 2000). The state of Massachusetts does classify felony as any given offense, which does entail serving prison time. These are but examples of the varying nature of classifications according to the severity of the individual cases in question. The laws prevailing in the U.S. are majorly anchored on common law, as exemplified in British Law. Initially harsh felony laws were inherited from Britain, when the U.S. was still a colony. However, amongst the first fruits of liberty, when the U.S. gained independence, was the reform of such harsh laws. This does not mean that the consequences of such sentencing do not affect an individual even after the end of imprisonment. On the converse, convicted felons can indeed fact long-term legal consequences, because the designation and status, as ‘a convicted felon’ is usually permanent. This is usually not extinguishable, even upon the presence of probation, early release or parole, in addition to the completion of a sentence. The only means, through which such status can be cleared, is only by way of a successful executive (presidential) clemency, or through appeal. There is however, a reprieve in the form of felons being able to apply and successfully gain some restoration of their rights after a given period has elapsed. A majority of states do share various consequences, which are often faced by convicted felons (Lynch, Mona & Danner, 2007). The most critical of these is disenfranchisement, which is expressly permitted under Law, as articulated under the Constitution’s Fourteenth Amendment. In addition, others include - the lack of admissibility, with regard to serving on a jury; the ineligibility for any form of state welfare or assistance, and the deportation on non-citizen individuals. In addition, there is the exclusion from both the purchase and possession of ammunition, body armor and firearms, and the inability to obtain specific licenses i.e. professional licenses, a visa etc, which are essential for the legal operation of an individual in specific vocations. In addition, is the presence of many rental and job applications requiring identification if the applicant has any criminal record. Thus, felons can, and do suffer from the lack of proper housing and job opportunities, because of the legally acceptable discrimination. The banking sector can also refuse to offer services to convicted felons, in addition to some states considering this as enough grounds for uncontested divorce. A common parole requirement is that one ceases to associate with other felons. However, some neighborhoods do have high rates of conviction, thereby creating contexts in which affected individuals constantly live in fear of (re)arrest; as a result of parole violation (Chapin, 1989). Defense in a Court of Law Felonies do vary, in terms of seriousness/ gravity, thereby influencing the sentencing aspect. These cases do require the presence of a trial jury, in addition to the state prosecutor (District Attorney’s Office), and the defendant’s counsel. Depending on the existing state statutes, as Phillips (1960) portrays, federal laws/ clauses and international common law, an individual or group of people may be found either guilty or innocent. This is what influences the sitting judge(s)’s final sentencing, though there is the option of appeal, to a higher court. As earlier mentioned, typical felonies are varied and hence result in different sentences, depending on the seriousness of the offence. Serious felonies include murder or homicide, rape, child abuse, drug trafficking, burglary, money laundering, assault, gun possession and child pornography. These do result in serious consequences, especially in the case of a conviction. Such consequences, as earlier aforementioned, are varied and depend on amongst others: - the felon’s prior convictions, or not; the present aggravating/ mitigating circumstances of the case, and the severity of the harm did. In addition, is the presence of the existing attitude of both the court (jury) and community towards such a crime the presence or absence of a weapon when the crime was committed, and if the defendant is currently either on parole or probation (Phillips, 1960). Felonies may also attract civil liability, depending on the seriousness of such a crime. In the case of a private lawsuit, a felon may be held accountable to the victim, subsequently necessitating the presence of compensation to the victim(s). This is especially true in the case of physical injuries; discomfort, brought about by suffering and pain; lost work time; emotional trauma and direct, out-of-the-pocket medical expenses. When one is accused of a felony, he/she ought to speak immediately to a criminal defense attorney in the aim of learning more about his/ her rights. In addition is the need to be better acquainted with the defense chances present, as well as the legal system that is often complicated in nature. Conversely, in the case of an individual, or group of people who suffer (are victims of) a felony, procedure dictates that he/she contact the police immediately. In the event there is viable (sufficient) evidence present, the police are hence able to forward the case(s) to the state’s District Attorney’s (DA) office. From there, a case can be brought forward, with the aim of prosecuting the person or people responsible for committing the felony (Dau-Schmidt, 1990). In such a case, the affected individual(s) can opt to file a lawsuit for monetary compensation, against the accused felon, especially in cases where the felon is found guilty. This will necessitate the complainant to speak to a Personal Injury Attorney, on the way to proceed. To be noted is that sentences are usually determined by a number of factors, with regard to the case in focus. Some crimes can be charged as either felonies or misdemeanors depending on the inclination of the DA and presiding judge, as well as the severity of the circumstances present. The amount and nature of evidence is a crucial factor in determining the seriousness of the crime, as well as the degree/ severity of punishment. Due to the seriousness of such crimes and/ or accusations, the defendant does require a skilled and experienced trial lawyer. This is informed by the fact that more experience is better generally, than little or no experience at all especially in such case scenarios. The above experience, though being vital in such case trials, is only worthwhile and hence dependent on the defense attorney’s innate judgment, intelligence and persuasiveness before the trial jury present. In addition to enlisting the aid of a highly qualified criminal defense attorney, the defendant needs to also to observe a number of issues (Fletcher, 2000). First, is the need to ensure that he/she does not make any statements, without the presence and approval of his/ her attorney. This, as Lynch, Mona & Danner (2007) allude, is best achieved by way of exercising one’s right to remain silent, as provided by law. The skilled lawyer enlisted, should also possess negotiating skills. This is informed by the fact that only a rough 5% of all felony convictions are because of jury trials. The majority percentage however is often because of plea bargains, made on behalf of the felon, by the skilled criminal defense attorney. In such cases, the defendant usually agrees to plead guilty in the case, in return for another more favorable treatment or reduced sentence. This is usually conducted prior to commencement of trial, involving only two parties i.e. the defendant and his/ her defense lawyer on the one hand, with the victim and the DA’s office on the other. There is usually no need for the presence of trials or even trial jury in such case scenarios. The aim of such a move is towards gaining the best possible deal and advantage, even in the presence of a guilty plea to the charges presented. A good criminal defense lawyer, is able to clearly and candidly explain all possible legal options, considerations and ramifications, which could bear on the accused person’s case. This is through outlining the range of possible options available, in addition to the core aspect of vigorously protecting the defendant’s rights. However, to be noted is the fact that this can pose a problem, in the case of a plea bargain, when the defendant had earlier asserted his/ her innocence. Thus, one should tread carefully, in such matters, seeking the best possible advice and solutions possible, prior to the commencement of the case (Lynch, Mona & Danner, 2007). In cases of criminal offenses, as Bray (2013) alludes, by non-citizens, especially when charged with an aggravated felony, the likelihood of deportation is real. This is as underlined in the Immigration and Nationality Act, Section 238 (I.N.A hereafter), where such extradition occurs whether the accused possesses a form of U.S. status or has a green card. Such proceeding may occur quite quickly, founded on an ‘expedited’ basis. Under America’s immigration law, felony convictions, of an aggravated nature, are usually treated seriously. Not only are these grounds for a person’s deportation, but can also result in non-citizens being barred from requesting any of the existing forms of immigration relief, which are open to individuals in removal proceedings. The above is inclusive of asylum seeking, in addition to the removal or cancellation of a majority of waiver, vital in the application for status. Reprieve for the convicted felon (charged with aggravated felony) can be found in the form of the withholding of the extradition/ deportation measures. This is viable in cases where the crime is not particularly serious. In addition, there can be application for a waiver, as outlined in Section 212(h) of the I.N.A. this is dependent on the felony being not inclusive of controlled substances, drugs, dangerous actions or violence. Another avenue of reprieve is through application for the U.N. Convention against Torture (CAT) protection. This protects asylum seekers who would otherwise suffer torture if extradited to their mother countries. After serving the sentences passed down in a court of law, ex-convicts do not have the opportunity and right to having their names erased (expunged); as former convicts. This issue highly sensitive and hence is determined by the prevailing state laws. However, there is the possibility of clemency, pardons and restoration of personal rights, being granted. Federal law, is however different in that it does not have any provisions for records to be expunged. The still debatable, and yet to be enacted – Second Chance Act – can change such aspects, though it is still a long way from achieving wider acknowledgement (Bray, 2013). The only form of relief an individual may receive, if prosecuted in a federal court is a Presidential Pardon. In conclusion, felonies are grave crimes, in not only the U.S., but the global arena as well. These are categorized depending on their gravity/ seriousness, to the victims and the effects on society. There is the option of plea-bargaining for a lesser sentence, or a court hearing, where the trial jury present, provide the best possible sentences according to American law. In some cases, felonies and misdemeanors are often interchangeable, with the prevailing state statutes and federal law significantly impacting on the results. Once an individual has a criminal offence, it is difficult to expunge his/ her name, with this having great impacts on their lives after prison. Presidential pardons and clemency are viable options, however they do provide only relief to the former convict from civil disabilities, stemming from their conviction, rather than expunging the sentences. References Bergman, P. & Berman, S. J. (2013). The Criminal Law Handbook: Know Your Rights, Survive the System, (13th Ed.). NOLO. Bray, L. (2013). Non-citizens Convicted of Aggravated Felony: Defenses to Deportation. NOLO [Law for All]: Crimes and U.S. Immigration. Retrieved from: http://www.nolo.com/legal-encyclopedia/noncitizens-convicted-aggravated-felony-defenses-deportation.html Chapin, B. (1989). Felony Law Reform in the Early Republic. The Pennsylvania Magazine of History and Biography, 113(2): 163–183. Dau-Schmidt, K. (1990). An Economic Analysis of the Criminal Law as Preference-Shaping Policy. Duke Law Journal, Vol. 1. Fletcher, G. P. (2000). Rethinking Criminal Law. Oxford University Press. Lynch, J. P., Mona J. E. & Danner, M. J. E. (2007). Offense Seriousness Scaling: An Alternative to Scenario Methods. Journal of Quantitative Criminology, 9(3): 309–322, Phillips, O. H. (1960). A First Book of English Law, (4th Ed). Sweet & Marxwell. Read More