5/8/15

By Alexa Gervasi, ACLR Featured Online Contributor

At Georgetown University Law Center, students do not take the traditional “criminal procedure” course. Instead, students’ transcripts read “Criminal Justice.” For all intents and purposes, the two courses are functional equivalents, both marching through the Fourth, Fifth, and Sixth Amendments to understand the framework of constitutional guarantees in the criminal arena. However, by changing the name of the course, Georgetown Law has distinguished criminal procedure from the traditional curriculum. It seems to be saying that criminal procedure is not about structure and rule alone, but demands that attention be given the purpose behind the criminal system. Every student, as they read Katz1 and Miranda,2 must ask himself, what is justice?

When he was 21 years old, David Powers was arrested for selling LSD to an undercover cop.3 After completing a drug rehabilitation clinic, Powers was able to plead guilty to the lesser offense of possession.4 Following his arrest, which Powers calls the “best day of [his] life,” he enrolled in college and eventually graduated with 3.9 GPA from Monmouth University.5 On a path toward success, he worked as a senior tax associate at PricewaterhouseCoopers before becoming a prominent hedge fund manager.6

Having achieved his Master’s in taxation, Powers was looking for his next educational opportunity. Six years following his arrest, Powers applied to St. John’s University School of Law.7 After consulting with an attorney, Powers disclosed on the application that he had suffered from addiction and been sentenced for drug possession, but that his record had since been expunged.8 With three semesters of law school under his belt, Powers met with the school to discuss what he needed to do to gain admission to the New York State Bar.9 In this meeting, he explained the entire situation leading up to his conviction, including the fact that he was originally arrested for selling LSD.10 St. John’s immediately revoked his admission, claiming that he had lied on his application and that the school has an unwritten policy against admitting students with a history of drug distribution.11

Powers has fought his expulsion all the way to the highest court in New York, which two weeks ago held 5-1 that St. John’s had not acted unreasonably in rescinding Power’s acceptance.12 Out of resources, Powers’ fight ends at the New York Court of Appeals.  Because St. John’s refuses to issue Powers a statement of good standing, he is not able to transfer his credits to another law school and continue his journey elsewhere.13

The punishments that Powers is now facing require us to pay attention to the four traditional justifications for criminal sentencing—retribution, deterrence, rehabilitation, and incapacitation. The latter three of these justifications are focused on utilitarian concepts of social benefit.14 We punish wrongdoers because we want to set an example for others, or create better citizens, or simply take individuals who are likely to commit crimes off of the street before they have the opportunity. The first justification, retribution, on the other hand, is focused on the individual.  The wrongdoer is punished because it is what he deserves. Even if society will not benefit from the punishment in any way, morality demands that he must be sentenced; the wrongdoer’s crimes inherently merit it.15 Some refer to this punishment justification as giving the criminal his “just deserts.”

In considering Powers’ case, it is curious which of these purposes the criminal justice system hoped to serve when he was arrested in 1999. It would be difficult to argue that the system intended to impose retribution on Powers. If that were the case, then he certainly would not have been provided the opportunity to complete a drug treatment program in exchange for a reduced charge. On the contrary, it appears as though the system sought a dual purpose: to rehabilitate Powers and to deter him from committing crimes in the future. And it appears to have been successful on both counts. Powers changed his life. He stopped selling drugs. He turned his attention toward education. He fought for more out of life. Yet, Powers continues to be punished for the crimes of his past.

To be sure, Powers erred by failing to fully disclose the events surrounding his arrest. He did not answer the question asked by St. John’s in its entirety. However, due to the advocacy of New York State Attorney General Eric T. Schneiderman, who argued that an inquiry into any stop that does not reach a conviction is improper, St. John’s application no longer asks, “Have you ever been arrested or convicted of a felony?”16 Therefore, if Powers were to apply today, the school would not know, nor would it have any reason to know, the full extent of the mistakes he made as a young man.

The continued penalties that Powers faces for the crimes of his past appear to serve a purpose more extreme than the utilitarian ideals of rehabilitation, deterrence, or incapacitation. In fact, those purposes were served in part when Powers turned his life around. Therefore, Powers’ current state of affairs can only be explained by a system focused on retribution. Powers must be punished simply because he did something wrong. The law school, and now the New York Court of Appeals, seems to have decided that the appropriate punishment for distribution of LSD, despite a lack of conviction for such an offense, can only be paid for by exclusion from the law school of his choice.

Powers serves as an archetype for failures of the criminal system. It seems as though the system does not know when to stop pushing. Even where it has accomplished its goals, the system continues to punish. Powers is excluded from practicing law because he violated the law in the past. This is not an argument that there should not be standards for individuals to pass the bar. This is not an argument that individuals shouldn’t be punished for their crimes. Instead, this is an argument that society needs to question the role of the criminal justice system and recognize when that role has been fulfilled.

Every individual must answer for himself whether this case was rightly decided. But every law student should take the time to consider the facts of Powers’ case and answer that question. Retribution is the oldest of all of the sentencing justifications, and there are certainly arguments to be made for its societal value. As the future arbiters of the criminal justice system, law students must consider whether they will advocate for retribution, deterrence, rehabilitation, incapacitation, or some combination of the four. Law students and practicing attorneys alike should ask whether we can do justice by serving individuals their “just deserts.”