The title of this post is the title of this notable new article now available on SSRN authored by Eric Fish. Here is its abstract:
Criminal history is all-important in the criminal and immigration systems. A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, be targeted for immigration enforcement, lose or keep their immigration status, and face or avoid deportation, among many other consequences. Yet despite the vital role that criminal history plays, judges, prosecutors, and other government lawyers know surprisingly little about the past crimes of the people they process. Factually rich accounts of a person’s prior convictions are rarely available, and the system instead relies on rap sheets that record minimal facts — the charge, the date of conviction, and the sentence imposed.
Because of this information scarcity, the criminal and immigration systems use criminal history heuristics when determining the consequences of prior convictions. Such heuristics include the number of past convictions, the types of crime charged, and the sentences imposed. These heuristics are inputted into mechanical formulas that translate them into often-severe consequences like deportations and mandatory minimum sentences. This way of using criminal history creates a number of serious problems in our system. It causes irrational and unjust results, renders the system arbitrary to the people being processed, exacerbates racial disparities, and makes access to a competent lawyer vital. This Article diagnoses these problems and proposes a number of reforms, including ending the convention of “time served” sentencing and rewriting state criminal laws to limit their immigration consequences.
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