David Wovrosh, Associate Member, University of Cincinnati Law Review
Becoming a convicted felon can happen in the blink of an eye. A defendant walks into a courtroom and emerges as a convicted felon a short time later. But between entering and exiting that courtroom, at what point is a defendant convicted? This question carries critical implications for the accused, as a conviction opens the door to widespread social and economic costs under “civil death” statutes.[1]
Cleaton v. Department of Justice, a recent decision from the Federal Circuit Court of Appeals, aptly demonstrates the tension in defining “conviction.”[2] Given the myriad of ways in which a conviction results in the automatic loss of economic, social, and liberty interests, courts should look to Lott v. United States[3] and Dickerson v. New Banner Institute, Inc.[4] to develop a framework for convictions that allows for a more informed and intelligent pleading. A Lott/Dickerson framework would not permit a conviction to attach until a no contest plea is no longer able to be withdrawn.
Cleaton and the Question of Conviction
Cleaton, a correctional officer at the Bureau of Prisons in Virginia, was arrested for a felony charge of possession of marijuana with intent to distribute.[5] After entering a withdrawable[6] nolo contendere plea,[7] the Bureau of Prisons (BOP) notified Cleaton that he was terminated from his position pursuant to § 7371(b), which mandates that “any law enforcement officer who is convicted of a felony shall be removed from employment as a law enforcement officer.”[8] After receiving notice of termination, Cleaton appealed the BOP decision to an administrative judge, arguing that the nolo contendere plea does not amount to a “conviction” within the meaning of § 7371(b).
In effect, Cleaton’s withdrawable nolo contendere plea was held to be a “conviction” within the meaning of the statute.[12]
When is a Conviction a Conviction?
The definition of “conviction” has been a consistent source of judicial wrangling. When drafting statutes, Congress has occasionally provided a statutory definition of a “conviction.” It has done so by using qualifying language to modify the circumstances of a conviction.[13] In other cases, Congress has remained silent on the definition.[14] Where there is silence on the statutory meaning, courts must necessarily decide what a “conviction” is meant to encompass.
In Cleaton, the Federal Circuit leaned heavily on the Supreme Court’s decision in Dickerson v. New Banner Institute, Inc.[15] In Dickerson, the Supreme Court held a defendant charged under Title IV of the Gun Control Act of 1968 was “convicted” for the purpose of the statute where the individual had entered a guilty plea during negotiations, but had not yet been sentenced.[16] The Dickerson court looked to the legislative purpose of the statute for guidance.[17] The Court determined that the language of the statute showed that a guilty plea alone, without a sentence, rose to the level of “conviction” within the meaning of the statute.[18] Other cases have provided a more nuanced construction of “conviction.” In Lott v. United States, the Supreme Court found that a withdrawable nolo contendere plea itself was not a conviction.[19] Critically, the Court in Lott predicated its decision on the ability for the defendant to withdraw the plea before imposing a sentence.[20]
Against this conflicting backdrop, the Federal Circuit in Cleaton chose to apply the standard in Dickerson, while leaving Lott unexamined. Examining the Lott and Dickerson together, it becomes clear that the Federal Circuit Court of Appeals arrived at the wrong conclusion.
Lott and Dickerson Create a Workable Conviction Model
The Federal Circuit heavily relied on Dickerson to conclude that a plea alone is a conviction under §7371(b). Dickerson was decided precisely because the statute defined the meaning of “conviction” in its text.[21] The Dickerson court read “conviction” as it did because the statute applied to indictments as well as convictions.[22] Dickerson held that a person can be convicted “once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence.”[23] Therefore, under Dickerson, a conviction requires two elements: an establishment of guilt and nothing to be done except sentencing.
Lott examined the meaning of conviction within the context of a withdrawable nolo contendere plea.[24] Where the plea is withdrawable, “it is the judgment of the court—not the plea—that constitutes the ‘determination of guilt.’ [W]e have not been cited to any case, and have found none, that holds or even intimates the contrary.”[25] Critically, the Court found a withdrawable nolo contendere plea “itself does not constitute a conviction.”[26]
Reading Lott and Dickerson together, if the defendant is procedurally able to withdraw their no contests plea, a conviction attaches at the point where a plea is no longer able to be withdrawn, and nothing remains to be done but sentence the defendant.
Cleaton’s Misinterpretation Creates Dangerous Precedent
§ 7371 does not define “conviction.”[27] Using the Lott/Dickerson framework, it is apparent neither conviction prongs were fulfilled. First, no “determination of guilt” had been made. Using Lott, a withdrawable plea of no contest is not able to be considered a “determination of guilt”.[28] For a withdrawable no contest plea to be considered a “determination of guilt,” the court must first render judgement. Second, because the plea itself is withdrawable, there may yet be steps for the court to take. When the plea may be withdrawn, a defendant may still withdraw and enter a plea of not guilty. Procedurally, the defendant has not exhausted his options and can still affect the disposition. This can be of critical importance. Defendants are often unaware of the ramifications of a guilty plea and the opportunity to revise a plea may offer a chance to avoid a “civil death.”[30]
The Stakes of a Misapplied Conviction
The ruling in Cleaton creates a dangerous precedent that could impact thousands of lives every year. By creating a broader class of people that potentially fall under the convict label than the Lott/Dickerson framework would allow thousands of people every year would be subjected to the automatic forfeiture of liberties.
Apart from time served, there are over 38,000 distinct ways that a conviction can trigger the automatic revocation of an individual’s rights by a process called “civil death.”[31] Civil death is the “substantial and permanent change in legal status” that take effect upon the moment of conviction.[32] The trigger for these wide-ranging collateral consequences is the moment of conviction.
Collateral consequences range from the restrictions on the ability to vote, housing assistance, government benefits such as food stamps, access to educational subsidies, employment, and even access to collecting social security, among many others.[33] These collateral consequences operate independently of the sentencing and do not require the defense counsel to inform the defendant of the collateral consequences of their plea.[34] Collateral consequences can often be harsher than the sentence itself. Indeed, the “most severe and long-lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.”[35]
One justification for the lack of scrutiny in determining collateral consequences at sentencing is the interest in judicial efficiency.[36] Others justify expansive sanctions, regardless of the nature of conviction, as punishment for the conviction itself.[37] This reflects the notion that collateral consequences “are civil regulatory measures designed to prevent undue risk by proven lawbreakers.”[38] Because they are divorced from the criminal proceedings, they need not be considered at trial.[39]
There is, however, growing caution around this proposition. Indeed, the American Bar Association has recommended a tighter nexus between collateral consequences and the specific crime, and that the defendant be fully informed of the consequences of his plea.[40] Even the Supreme Court has cautioned against entering a plea where one is unaware of the full ramifications of doing so.[41]
Given the economic and liberty interests at stake, the Federal Circuit’s broad interpretation of “conviction” sets a dangerous precedent. By holding that a withdrawable nolo contendere plea can be considered a “conviction,” the Federal Circuit is unwittingly casting millions more individuals into civic death. Instead, the Supreme Court should adopt a universal definition of “conviction” where the conviction only attaches at the point a plea is no longer able to be withdrawn. This would allow procedural room for a more informed and intelligent pleading system which enables defendants to fully consider the collateral consequences of their pleadings.
Conclusion
The precise definition of conviction remains, at best, a judicial “chameleon,” which struggles to find a judicial consensus on its precise meaning.[43] The Federal Circuit Court of Appeals has taken an expansive reading of the term and extended it to include pleadings of nolo contendere that have yet to receive a sentence.[44] To arrive at this conclusion, the Federal Circuit Court of Appeals misapplied case law and gave little to no attention precedent. In so doing, the court expanded the triggering mechanisms for the litany of other life-long collateral consequences found in civil death. Given the severity of the implications of a the Cleaton ruling, the Supreme Court should grant cert and require a more nuanced construction of the term “conviction.” This can be done by applying Lott to Dickenson where a withdrawable plea by itself cannot render a defendant a convict.
[1] Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012).
[2] 839 F.3d 1126 (Fed. Cir. 2016).
[3] 367 U.S. 421 (1961).
[4] 460 U.S. 103 (1983).
[5] Id. at 1127.
[6] § 7371(b) is a federal rule. Procedurally, however, Cleaton was still able to withdraw his no contest plea under Virginia State procedure.
[7] U.S. v. Norris, 281 U.S. 619, 622 (1930). A nolo contendere plea, or no contest plea, is an admission of all of the elements of the case against the defendant.
[8] 5 U.S.C. § 7371(b).
[9] Cleaton, 839 F.3d at 1128.
[10] Id.
[11] Id. at 1127.
[12] Though § 7371 is a federal crime, the procedural laws of Virginia, where the case was being tried, allow for a defendant to withdraw a plea at any time before sentencing. Cleaton, 839 F.3d at 1130.
[13] See, e.g., 38 U.S.C.A. § 5313 (incarcerated . . . for a period in excess of sixty days for conviction of a felony) (emphasis added); 5 U.S.C. § 8332(o)(6)(a) (“the terms ‘finally convicted’ and ‘final conviction’ refer to a conviction (i) which has not been appealed and is no longer appealable because the time for taking an appeal has expired, or (ii) which has been appealed and the appeals process for which is completed”).
[14] “To be sure, the terms ‘convicted’ or ‘conviction’ do not have the same meaning in every federal statute. In some statutes those terms specifically are made to apply to one whose guilty plea has been accepted whether or not a final judgment has been entered.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 113 n.6 (1983).
[15]460 U.S. 103 (1983).
[16] Id. at 112-13. The Cleaton court, similarly relying on Dickerson, determined that federal law controlled the definition of “conviction” for the purposes of §7371(b). Cleaton, 839 F.3d at 1129. Cleaton, however, fails to distinguish that the state laws of Virginia still procedurally allow for a withdrawal of a plea before sentencing. Cleaton, 839 F.3d at 1130.
[17] Dickerson, 460 U.S. at 112-113.
[18] Id.at 112-113.
[19] Lott v. U.S., 367 U.S. 421, 426-27 (1961).
[20] Id. at 426-427.
[21] Dickerson, 460 U.S. at 116. “[18 U.S.C.A.] Sections 922(g) and (h) impose the same disabilities upon a person who ‘is under indictment’ for certain crimes. This use of the respective tenses is significant and demonstrates that Congress carefully distinguished between present status and a past event.”
[22]Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987) (emphasis added).
[23] Dickerson, 460 U.S. at 114 (emphasis added).
[24] Lott v. U.S., 367 U.S. 421 (1961).
[25] Id. at 427.
[26] Id. at 426 (emphasis added).
[27] See 5 U.S.C. § 7371.
[28] Lott v. U.S., 367 U.S. at 427.
[29] Id.
[30] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.
[31] Kathryne M. Young & Joan Petersilia, Keeping Track: Surveillance, Control, and the Expansion of the Carceral State, 129 HARV. L. REV. 1318, 1341 (2016).
[32] Gabriel J. Chin, The New Civil Death, supra note 1, at 1790.
[33] See Lahny R. Silva, Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders, 79 U. Cin. L. Rev. 155, 164 (2010); Kathleen M. Olivares et. al., The Collateral Consequences of A Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 Fed. Probation 10 (September 1996).
[34] Gabriel J. Chin, The New Civil Death, supra note 1, at 1814-15.
[35] Id. at 1791.
[36] Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 646 (2006).
[37] See Gabriel J. Chin, Are Collateral Sanctions Premised on Conduct or Conviction?: The Case of Abortion Doctors, 30 Fordham Urb. L.J. 1685 (2003).
[38] Id. at 1685.
[39] Id.
[40] “The legislature should not impose a collateral sanction on a person convicted of an offense unless it determines that the conduct constituting that particular offense provides so substantial a basis for imposing the sanction that the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified.” ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons Standard 19-2.2 (3d ed. 2004), available at http:// www.abanet.org/crimjust/standards/collateralsanctionwithcommentary.pdf. In 19-2.3, the ABA also recommends a full notification to the defendant on the applicable collateral consequences of the conviction.
[41] See Padilla v. Kentucky, 559 U.S. 356 (2010).
[42] See, e.g. Gabriel J. Chin, The New Civil Death, supra note 1, at 1803-06. Given the steady rise of mass incarceration and the mass proliferation of collateral consequence statutes, judicial restraints on the ability to participate in civil life have exploded exponentially in recent decades.
[43] Harmon v. Teamsters, Chauffeurs & Helpers Loc. Union 371, 832 F.2d 976, 978 (7th Cir. 1987).
[44] Cleaton, 839 F.3d at 1129-30.
