With the current news of massive Immigration and Customs Enforcement (ICE) raids in Texas and other states, much talk has been devoted to explaining exactly who is being seized by ICE for deportation. Discussion has largely centered on immigrants who have been “charged with or convicted of” a criminal offense. This is troubling for the careless (one would hope it is merely careless versus something more sinister) grouping of “charged with” and “convicted of”—terms that are, in reality, miles apart.
Virtually anyone can be “charged with” a criminal offense. The standard of proof required to arrest and to charge a person with an offense is probable cause. As I have explained previously, probable cause is a very low legal standard (considerably less than even the civil standard of preponderance of the evidence.) An officer does not have to observe a person actually commit an offense to have probable cause. Instead, probable cause (in short) requires only that it be reasonable to believe a person has committed an offense. Consider how elastic the word “reasonable” is—little falls outside the realm of what can “reasonably” be believed, especially today.
Apart from being a very low standard of proof, to be charged with an offense is very different than to be convicted of an offense. A person can be charged with an offense only to later have that charged no-billed by a grand jury (declined to be formally charged by indictment) or declined to be filed (in a misdemeanor case) by an intake prosecutor; or to have the charge dismissed; or to go to trial on the charge and be acquitted. So, for example, a person who was arrested for possession of marijuana and later had the charge thrown out by the prosecutor for lack of evidence, technically has been “charged” with the offense of possession of marijuana.
On the other hand, to be “convicted of” an offense is to be proven to have committed the offense beyond all reasonable doubt. Beyond all reasonable doubt is the highest standard of proof in the American legal system. A person becomes convicted of an offense after the person has either (1) pled (and thus admitted guilt) to the offense in front of a judge; or (2) been on trial for the offense and had evidence of the person’s guilt presented to a jury (who must be unanimous in Texas) or judge who then finds the person guilty beyond all reasonable doubt.
This is what is potentially alarming about the phrase “charged with or convicted of”; the two phrases are not equivalent in any respect. “Convicted of” encompasses only those who have been determined to actually be guilty of an offense under the American legal system. “Charged with” encompasses substantially more people, including those who were later determined to be completely innocent of the charge.