Is It Time To Rethink Felonies? Michigan Supreme Court Justice Functionally Forces Resignation Of Law Clerk.

In 1994, a man named Pete Martel robbed a convenience store and fired shots at responding officers. No one was hurt. Martel was convicted and spent 14 years in prison until he was paroled in 2008. Fast forward to 2023 and Martel has turned his life around in dramatic fashion.

Upon his release, Martel attended law school and became a licensed attorney. Michigan Supreme Court Justice Kyra Bolden subsequently hired him as a law clerk – a judicial assistant who helps justices research and draft their opinions among other things.

Bolden’s hiring of Martel quickly drew the ire of her fellow Democrat, Justice Richard Bernstein, who stated: “”I’m not saying (Martel) shouldn’t be allowed to make a living, and I’m all about second chances. But there are certain jobs you should never be allowed to have after you shoot at a police officer, and one of them is clerking for the highest court in the state…. And many of these cases affect police officers…. And we’re going to have someone helping to make these decisions who was convicted of shooting at a police officer? I’m completely disgusted by this.”

Bernstein’s criticism sparked a torrent of criticism toward the hiring decision. Martel ultimately tendered his resignation to Justice Bolden so as to not distract from the Michigan Supreme Court’s work. The question remains though: Was it right?

Martel’s story of rehabilitation and redemption is not alone. Georgetown law professor Shon Hopwood was convicted of federal felonies for bank robbery and was sentenced to 12 years and three months in prison. Hopwood found his calling in prison: drafting legal paperwork for other prisoners and astoundingly persuading the U.S. Supreme Court to accept a petition for certiorari from a pro se prisoner in 2002. Former U.S. Solicitor General Seth Waxman called the petition the one of the best he had ever seen, and the U.S. Supreme Court unanimously sided with Hopwood’s arguments. It subsequently agreed with Hopwood in a second case in 2005.

Hopwood became a licensed attorney in 2015, and he became a Georgetown law professor in 2017. His memoir, Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption, is a compelling read.

Both Martel and Hopwood’s stories show that miraculous redemption is possible. Our nation and our states still saddle convicted felons with serious collateral consequences – often without any way for them to show that they have redeemed themselves. For instance, both Martel and Hopwood have lost their Second Amendment rights forever with little to no hope of recovering them. They have lost the right to serve on juries. The consequences in the job market remain steep no matter how remarkable a story of redemption that a person has, and, due to state licensing regimes, blue collar trades may remain inaccessible to many convicted felons.

Whatever Justice Bernstein’s intentions may have been, he did justice a grave disservice by leading the charge to make it impossible for Martel to serve as a law clerk to Justice Bolden.

A penal system should have four objectives: retribution, deterrence, rehabilitation, and protecting society from abnormally dangerous people. No objective should be allowed to swallow the other objectives whole, but it is no secret that most American penal systems have marginalized rehabilitation for convicted felons after they are released. While I am certainly not advocating for a laissez-faire approach to felons being put into positions of trust, I am advocating for them to at least be given a chance to make the case as to why they have been rehabilitated.

Martel wasn’t given a chance. He was crucified without a hearing by a sitting Michigan Supreme Court justice.

How did we get here? At English common law and in the early American legal tradition, felonies were crimes either associated with capital punishment or the forfeiture of a person’s land and goods. As United States jurisdictions focused on making sure punishments fit the crimes (proportionality), they began imposing lesser sentences for certain crimes that used to be considered felonies. They, however, did not reclassify crimes carrying less serious consequences as misdemeanors or create a new class of criminal offenses.

The end result is that states and the federal government have greatly expanded the number of felonies that a person may commit with little to no regard for the collateral consequences that a felony conviction carries. The penal system provides little to no discretion for a judge to mitigate collateral consequences either.

Paths to redemption and the restoration of a person’s full constitutional rights and privileges after they have served their time and completed their probation are few and far between no matter how remarkable their transformation is. In most cases, constitutional rights are lost forever.

For every Shon Hopwood story of success, there are 1,000 Pete Martel stories. Every one of them is a tragedy, and they probably contribute greatly to recidivism. While it is true that there are many felons who society needs to restrict through collateral consequences, we can do better than permanently closing doors on redemption through labels that are ill-thought of.

We also can certainly do way better than crucifying a man without providing him a chance to show us that he has redeemed himself.