On The Docket: To Purge, Or Not To Purge

Recently, Judge Nadine Allen and former City Councilmember Charles Winburn have jointly proposed that misdemeanor warrants that are more than seven years-old be "purged," or deleted, from the Hamilton County court system. The Enquirer has posted the text of their proposal here. The basic idea is that warrants for misdemeanor offenses--except for domestic violence, TPO violation, menacing by stalking, assault, assault on police officers, sex offenses, OVI/DUI, aggravated menacing, and child endangering--that are seven years old or older would be purged and the cases dismissed. (I suspect that by "assault on police officers," Judge Allen and Mr. Winburn are referring to a first-degree misdemeanor charge of resisting arrest, which has as an element physical harm to the arresting officer.)

First, Judge Allen and Mr. Winburn are to be commended for the proposal. Their effort represents bipartisanship that we don't often experience here in Hamilton County. It's also a serious effort to address a problem the existence of which everyone involved in the criminal justice system recognizes, but for which, so far, no one has been willing to offer solutions. While the proposal may overestimate the amount of money that would be saved by the purge, the cases do extend the courts' dockets and force prosecutors to spend time that could better be spent on more serious (i.e. violent) offenses that are more likely to end in successful prosecutions. It also forces the Public Defender's Office to spend time on cases that likely aren't going anywhere, instead of cases that are much more likely to go to trial. So everyone loses when these ancient cases suddenly pop back up into the system.

That being said, there are actually two different types of outstanding warrants, and we might need to discuss each type separately. Broadly speaking, you could separate the warrants into two categories: those in which the defendant has been served and made aware of the charge, and those in which which he has not. For me, the second category is easy. If the police haven't bothered to serve a warrant within seven years of the time a charge was filed, the case should be dismissed. (And in fact, assuming the defendant hasn't been avoiding service, a defendant served seven years after a complaint was filed could probably successfully move to have the complaint dismissed on constitutional speedy trial grounds.)

Here's an example. A few years ago, I represented an individual who, in September of a particular year, got into a fight with his then-girlfriend's roommate over the phone. Unbeknownst to him, she went to the police and filed a telephone harassment charge. The police made no attempt to serve the warrant (not surprising--it's not exactly the crime of the decade!). In June of the following year, my client's apartment was robbed. He called the police. When they came over, they ran a standard check for warrants, and he was arrested on the outstanding warrant, now nine months old. The charge was, thankfully, dismissed. It would've been difficult to prepare a defense nine months after an offense allegedly occurred; think about trying to do it seven years later.

The other category of defendants, though, may be a tougher case. These individuals are people who were served with a warrant, who then may or may not have made an initial court appearance, and then disappeared. The warrant is actually a "capias warrant," issued by a judge at the time of the missed court appearance. Obviously, if a capias is outstanding for seven years or more, the person has lived pretty clean (since any contact with law enforcement would mean an arrest on the outstanding warrant). But some will still question whether such people should be "rewarded" for avoiding prosecution. On the other hand, I suspect that the vast majority of the warrants to be purged will be for traffic-related misdemeanors--driving without a license and driving under a suspended license.

This is the perfect time for the proposal to be tendered. Many of the municipal court judges just won fresh six-year terms in 2007, and HamCo Prosecutor Joe Deters is running unopposed, so no one faces immediate political pressure to look "tough on crime." (The City of Cincinnati prosecuting attorney is not an elected official, but instead serves at the pleasure of the City Solicitor, who is appointed by the City Manager.) It'll be interesting to see what the judges do with this at their "Joint Session" later this week (I've always envisioned the "joint session" to be a gathering at which the judges get together with some weed and rolling papers, but I'm told that's not what actually happens, despite the meeting's moniker). Hopefully, the judges will agree at least to study the proposal, getting formal input from the Clerk and the County and City prosecutors about its ramifications.