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Prior convictions have a dramatic impact on the sentence and treatment of many people in the criminal justice system, and there are many different types of priors. Most people have heard of strike priors, but there are also theft priors, narcotics priors, prison priors and nickel or serious felony priors. Most priors can be dismissed or stricken by the court or prosecutor or in some situations not filed at all. However, there are some priors that can not be stricken or dismissed once charged.

In the criminal justice system today priors play a vital roll in how the court and the prosecutor views a person charged with a crime. Is it always fair? When it is not fair who’s responsibility is it to step up and insure that the system does not improperly over punish a person for who they used to be? The easy answer is the criminal defense attorney. He or she is the person in the system that has the greatest access to the person charged with a crime. He or she is required to represent the interest of the person charged. However, does the court, the prosecutor and probation share an equal responsibility in advocating for the person charged or at least being reasonable and keeping the person’s history in perspective. As a criminal defense attorney you constantly fight (a sometimes uphill battle) to have the person charged and sentenced based on who he is today versus some interpretation of who he is based on his past. As a former prosecutor I used to have to help make those decisions and it was always a difficult task, because many people will say whatever they think will help lower their sentence. However, simply because a task is difficult does not mean it is not a worthwhile endeavor.

When I was a prosecutor I use to often surprise people when they started to ask me what my primary responsibility was as a prosecutor. Most people would say my job was to send people to jail. Others who were more contemplative would say I was responsible for holding people accountable for their criminal conduct or to enforce the law. However, my answer was always much different. As a prosecutor the answer to the question was always simple and consistent through out my decade in the office. I would always say my primary responsibility was to do “Justice”. That could include sending someone to prison, just as it could include dismissing a case or deciding not to file charges. Now my perspective as a prosecutor was not my own extrapolation it was what I was taught as a young prosecutor by several prosecutors that I held in high esteem. Most prosecutors would agree with that definition to some extent even if they feel the need to add on other worthy interpretations such as protecting the community and enforcing the law etc.

I have never been a judge, however based on my years in the criminal justice system I would believe or at least hope that some if not all judges believe that justice is their core responsibility or among their core responsibilities. Alternatively, the criminal defense attorney is primarily charged with representing the interest of their client and insuring that their client’s rights are protected. Therefore based on my interpretation of the primary and or a major component of each groups prime objective the issue of priors should be of a particular concern for all parties. Would any group contend that a person should be judged based on who they used to be or who they are today and their future prospects for criminality? I would hope not. However, as I used to say as a prosecutor, although my primary objective is to do justice it is sometimes difficult to get people to agree as to what justice demands. Similarly, the parties in the criminal justice system may not always agree as to whether the prior history of a defendant is reflective of who they used to be versus who they are today. 

If Justice is the mandate or part of the mandate of a party it should be part of the decision to charge or dismiss priors when the law grants discretion.

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