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“F” – as in felony – is the new Scarlet Letter



Is a convicted felon ever a proper person to hold a position within a profession or regulated industry?  In one news report, it was questioned whether a convicted felon was a suitable person to transport human remains.  More recently, the State Bar chose to continue the suspension of former Gov. Mike Easley rather than to apply the harsher penalty of revoking his law license.  In each case, the party had previously pled guilty to one or more felonies.

In the common vernacular, felonies are usually thought of as crimes of grave character such as murder, rape, and burglary.  The historical significance of felonies related to the fact that, under early English law, such crimes were punishable by death or mutilation and resulted in the forfeiture of the lands and goods of anyone so convicted.

Far from incarnations of evil, many convicted felons did not consciously set out to harm or injure anyone.  Given the broad expansions of statutory “crimes,” particularly by the federal government, it may be that a person accepting a plea agreement and thus a felony conviction may have never known or realized that his actions were criminal.

Popular wisdom equates conviction with guilt, but the criminal justice system is not the arbiter of cosmic truths.  The system is knowingly and admittedly flawed.  Those working in the criminal justice system accept that guilty persons will sometimes go free.  Similarly, it is an unfortunate reality that innocent persons will face criminal prosecution and occasionally conviction.  There is a constant effort to maintain a teetering balance between the safety of society and the rights of individuals.  The result is never perfect justice.

Early in my legal career, I was asked to meet with a client, who was facing a potential life sentence.  The client had been convicted twice of drug-related felonies.  However, he was no longer a drug user, and he had worked hard to clean up his life.  He was far from the career felon for whom “three strikes” laws were intended.  Nevertheless, he faced allegations of sexual molestation of a minor child brought by a bitter ex-spouse, and we knew that such allegations never sit well with juries.

My law partner had negotiated a plea with an empathetic ADA.  I was being asked, as someone close in age, to impress upon the client that this was a good deal.  I was being urged to convince a man, who I wholeheartedly believed to be innocent, to go voluntarily to jail for less than a year rather than face the possibility of lifetime incarceration.

Reluctantly, he took the deal.  It was the right thing to do.  Some would say that the system failed him, and an innocent man went to jail.  Others of us would say that the parts an imperfect system came together to make the best of a bad situation.

Despite the guarantee of trial by jury, rarely is any person convicted by a jury of his peers.  Some analyses indicate that more than 90 percent of criminal defendants choose to plea rather than risk the uncertainty of a trial.  The government participates in plea bargaining for the sake of judicial efficiency, recognizing that trying each case would bring the criminal justice system to a screeching halt.

The system can be abused by guilty persons, who know that they are unlikely to face the maximum punishment possible for their crimes.  Similarly, the government can abuse the system by tacking on numerous charges to increase the potential punishment faced by a defendant in a marginal case, with the objective being to encourage (some would say “coerce”) that defendant to plead guilty.

Idealists may question why an innocent defendant would plead guilty to any charge. Sentencing guidelines all but assure that a defendant found guilty at trial will receive the maximum possible sentence.  Whereas, a negotiated plea, even on a felony charge, may result in a minimal prison stay or even probation.  Additionally, the costs of defense and trial can easily bankrupt a defendant and his family.

Some time ago, I attended an administrative hearing in which a former professional licensee was seeking reinstatement of his licensee.  The former licensee had been caught in the wide net of federal “honest services laws” and pled guilty.

Formerly, federal prosecutors used these statutes to bring criminal charges based upon fraud committed by denying someone the “intangible right” to one’s “honest services.”  Additionally, each party allegedly harmed could represent an additional count.  Under applications by some courts, no intent was required.  All that had to be shown was an act or omission outside a prescribed standard of care.  There was testimony at the hearing that there had been technical errors or omissions, but that these errors were at most negligence.

The licensee in question had faced the prospect of decades in a federal prison.  Given the technical complexities and number of counts, defense against the charges was entirely cost prohibitive.  In the end, he opted to plead to one felony and received probation with no active prison time.  He did this to save himself and his family the trauma of a protracted trial and financial ruin.  Only the most adamant among us would argue that we would have acted any differently under the circumstances.

By any measure, the individual paid his debt to society.  A series of witness attested to his technical competence, work ethic, and personal character.  Nevertheless, the hearing focused on whether a convicted felon should be allowed to practice as within the profession.  For some, the issue was black and white, “Once and always a felon; therefore, he is unworthy to ever again be licensed.”  Others realized, “There but for the grace of God go I.”

It is much easier to paint with a broad brush than with a fine one.  Undoubtedly, there are persons whose convictions properly serve as warnings for all to approach with care.  However, people do not always follow the script that we write for them.  Perhaps, it is appropriate to decide that a convicted felon can never be rehabilitated sufficiently to perform certain functions.  However, we should make that decision informed of all of the facts and circumstances, and we should ask ourselves whether the scarlet letter that they wear truly serves to protect society.

J. Wesley Casteen is an attorney and CPA practicing in Wilmington, North Carolina.

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