IS this a violation of the 8th amendment of the constitution?

Asked almost 2 years ago - Austin, TX

In 1986, more than 20- years ago I had a conflict with the law for taking a strip of aluminum from a window to sell for some pocket change; as a result, I was arrested and charged with attempted burglary. Now, several years later, I'm on track to completing a bachelors degree in may of 2013. However, I'm concerned about getting a job in my field because even though I was placed on probation in Texas for a first and only offense, i still feel like a habitual criminal because it's still on my record, and I continue to have to justify why it's there after paying my "debt to society". could this be considered a violation of the 8th amendment, and doesn't this contradict "truth in sentencing"?

Attorney answers (5)

  1. Timothy A. Provis

    Contributor Level 15

    2

    Lawyers agree

    Answered . Dear ?,

    Absolutely not. At most, the fact your felony conviction is still part of the public record is a what the law terms a "collateral consequence" and it is not actionable on ANY grounds. Since your state has very restrictive laws on expungment (Texas calls it "expunction") of felonies from a person's record, this is not an option for you either. (The feds keep arrest records on the NCIC computer for 90 years.)

    Yours sincerely,
    Tim Provis
    Cal. Bar No. 104800
    Wis. Bar No. 1020123
    Member: U.S.Supreme Court Bar

  2. Christopher Gerard Frey

    Contributor Level 10

    2

    Lawyers agree

    Answered . No. The 8th protects against cruel and unusual punishment in sentencing Not against collateral consequences resulting from commission of the offense

  3. Bernard Weiss

    Contributor Level 8

    1

    Lawyer agrees

    Answered . No, it's not a violation of the eighth amendment. You may not have trouble getting a job, but if you're concerned about it, you could have your record expunged. Then it would only be available to court and law enforcement personnel. A local criminal attorney could help you with that, or you could try it on your own.

    My responses to questions on Avvo are not intended as legal advice and must not be relied upon as legal advice. I... more
  4. Robert Pecco Baker

    Contributor Level 13

    1

    Lawyer agrees

    Answered . NO. The Eighth Amendment protects against cruel and unusual punishment byt the government. You did not state what your term of incarceration was, so you obviously are not challenging that. You are challenging the fact that you have a criminal record and that some people react negatively to that fact. If your challenge were upheld, there could be no public criminal records maintained. The laws requiring the registration of sex offenders could be challenged the same way. That would not be a good result for society.

    At this point ,it is not the government punishing you; it is other people reacting to what you did. The 8th Amendment does not apply to that; only to government action. Or, are other people really reacting at all? It sounds like mostly, this is you worrying about it. It was 20 years ago. You sound genuinely sorry and I am sure that comes across when you are interviewed.

  5. Paul Stanko

    Pro

    Contributor Level 12

    Answered . A single, isolated indiscretion many years ago does not make one an "habitual criminal". If the past record is causing current problems, you should consult with an attorney in your state to discuss what might be done. But under no circumstance is the situation you cite a violation of the 8th Amendment.

    Requesting, receiving, or accessing general information on Avvo or other web sites does not create an attorney-... more

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