Collateral Consequences

Google Goes After Mugshot Sites

I was delighted to read that Google has finally decided to tweak its algorithm to downgrade the so-called Mugshot sites. These sites publish the mugshots and arrest details of individuals who have been arrested for a crime, even when the charges are dropped or the individual pleads to a deal which does not result in a criminal record.

The sites usually work closely with a so-called removal service which will remove your name from their website for a payment of $400 or so. Some charge more; some charge less. Most of the sites also have a free removal process, but my clients have reported to me that the free removal services is overly cumbersome and the sites will only comply if there is an express statute banning the publication of the information. Thus, if the offender pleads to a deferred adjudication with no criminal record, many of these sites will leave the charges up even though the individiual has never been convicted of an offense.

There is also a rising grass roots movement against these
sites. Many people feel that they have been the victim of blackmail and that even when they capitulate and pay the money, their name promptly prompts up on a new server. It effectively becomes a game of “whack a mole.”

The article also reports that many credit card processors have refused to handle these removal businesses and that PayPal has banned them as well. While I feel positive about these developments, my unscientific experiment showed that these sites still come up on the top with respect to my former clients with sheltered convictions. Amending the Fair Credit Reporting Act to cover these sites would be the answer in this author’s opinion. It already covers some
dissemination of criminal records.

EEOC Sues BMW and Dollar General Over Refusing to Hire Former Offenders

The EEOC just filed suit agains BMW and Dollar General over their blanket refusal to hire former offenders. In the BMW case, the EEOC claims that BMW outsourced part of their human relations policy to an outside contractor who promptly fired 88 former offenders. In the Dollar General suit, the EEOC states that Dollar refused to hire former offenders even where their was no nexus between the offense and the job. To prevent a discriminatory impact against minorities, the EEOC requires employers to have a nexus between the criminal conviction and the job (e.g. they can stop an embezzler from holding a job as a cashier). Unfortunately, there are too many people in HR Departments who believe they should have a per se policy against hiring former offenders.

The
New York Times has urged these companies to reconsider their policies.

Nebraska Federal Court Strikes Down Ban on Sex Offender on Social Media

The Volokh Conspiracy blog’s David Post has a nice post on a decision of a Federal Court’s decision to strike down a Nebraska law banning sex offenders from using social media services such as Facebook. The ruling can be accessed here. Counsel’s brief can be found here.

Chaidez Rescheduled for Oral Arguments on Thursday - Updated

After a two delay because of Hurricane Sandy, the U.S. Supreme Court heard oral arguments in Chaidez v United States, No. 11-820. In Chaidez, the Court will decide whether its 2010 ruling in Padilla v Kentucky, __ U.S. ___, 130 S.Ct. 1473 (2010) is retroactive. Padilla stated that counsel has a duty to inform a non-citizen client about deportation consequences of the plea. SCOTUS blog has a nice summary of the case.Update: Here is a link to the oral argument transcript. Here is a link to the audio transcript. I’ve read the transcript on this one and it is going to be close.

Michigan Supreme Court Vacated In re TD - DiPiazza Lives

In People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009), the Michigan Court of Appeals ruled that Michigan's sex offender registration can be unconstitutional as applied to certain individuals. Mr. DiPiazza was involved in the classic "Romeo and Juliet" relationship with his fifteen year old girl friend. He was given a Holmes Youthful Trainee Act (“HYTA”) by a Muskegon County judge. This meant that he did not have a criminal conviction. Notwithstanding the HYTA, he was placed on the sex offender registry. He later married his girl friend and they had children together. Because of his being listed on the sex offender registry, the Defendant became virtually unemployable. A Grand Rapids panel of the Court of Appeals found that SORA was cruel and unusual as applied.

In re TD, the Court of Appeals refused to apply the ruling to juveniles. These Defendants were convicted in the Family Division of the Washtenaw County Circuit Court of second degree criminal sexual conduct. Shortly before the Defendant turned eighteen, he petitioned for relief from the sex offender registry. The Washtenaw judge found that the Defendant did not meet the statutory criteria for removal, but found that DiPiazza made the registry unconstitutional punishment. The Washtenaw County Prosecutor’s Office appealed to this ruling to the Lansing Division of the Michigan Court of Appeals. That panel reversed the trial court’s ruling. They distinguished and somewhat criticized the DiPiazza ruling.

Because of a statutory change, the former juveniles in In re TD, however, were relieved from their registration obligations. Taking the case over at the Michigan Supreme Court level, the University of Michigan Juvenile Law Clinic successfully convinced the Michigan Supreme Court to set aside the Court of Appeals ruling.
Click here to see their order. This has created as a "reset" and returned the law to a pre-In re TD state. Congratulations to my friend Professor Kim Thomas of the University of Michigan Law School in Ann Arbor on a job well done!

NACDL Launches Former Offender Restoration Project

On November 24, 2012, NACDL launched a very valuable resource on the web which outlines the rights that are restored to former offenders after serving their sentence, together with a listing of many of the collateral consequences they still face. That resource is available here.

Canada's CBSA Liberalizes Waiver Procedure for U.S. Visitors With a Single Drunk Driving or Other Minor Conviction

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

US Supreme Court to Decide Major Immigration Question - Updated

On Wednesday, the high court is deciding whether a Georgia man should be deported to his native Jamaica for having 1.4 grams of marijuana and sharing it without renumeration (e.g. sharing a joint with a friend). Read More...

Huge SADO Win in the US Supreme Court

Congratulations to colleague and friends at the State Appellate Defender’s Office for the wonderful victory in Lafler v Cooper. Lafler reaffirmed that counsel has a duty to convey a plea bargain to a criminal defendant and that failure to do so is not negated by giving the client a fair trial. To quote from SADO’s own blog:

On Wednesday March 21, 2012, the United States Supreme Court released the decision in Lafler v Cooper, finding that habeas relief was warranted due to ineffective assistance of counsel during the plea bargaining stage of the proceedings.  Lafler was argued by SADO Assistant Defender Valerie Newman on October 31, 2011, with Assistant Defender Jacqueline McCann serving as second chair.  The decisions in Lafler, and the related case of Missouri v Frye, are being hailed as "the single greatest revolution in the criminal justice process since provided indigents the right to counsel" - a quote from coverage in the New York Times.  Additional materials and full coverage of events can be found on Scotusblog's website.    



While SADO rightly turns to the New York Times for their praise, I think a better source of the importance of the ruling is to read what our enemies have to say. The Criminal Justice Legal Foundation’s whose mission statement says that their goal is provide reduced rights for criminal defendants. Their blog utterly blasts the ruling and it is authored by no less than their lead counsel
Kent Scheidegger.

COA Rules Padilla Isn't Retroactive

The Michigan Court of Appeals ruled that Padilla v Kentucky, 130 S Ct 1473; 176 L Ed 2d 284 (2010) is not retroactive. Padilla held that defense counsel had to tell a non-citizen about the deportation of the consequences of his/her plea. People v Gomez, Court of Appeals No. 320485.

10th Circuit Strikes Down NM Ban on Sex Offenders Using Public Library

In an unfortunate defense loss, the Michigan Court of Appeals just ruled that the United States Supreme Court’s ruling in Padilla v Kentucky is not retroactive. Padilla held that a defense attorney was ineffective when he gave his client incorrect information about the deportation consequences of the plea. Padilla, however, also held that even if the attorney gave no advice, he would still be ineffective. In a case called People v Davidovich, the Michigan Supreme Court had reached a contrary ruling some ten years early. In People v Gomez, the Court of Appeals ruled in a publish decision that Padilla was not retroactive. As the Court correctly noted, right now the US Federal Appellate Courts are bitterly divided. The United States Court of Appeals for the Seventh Circuit ruled in a divided ruling that Padilla is not retroactive. Conversely, the US Court of Appeals for the Third Circuit reached the opposite holding. The Seventh Circuit decision is currently being appealed to the US Supreme Court and the case may prove appealing to the high court. It is being advocated by a very good appellate advocate and has a number of organizations backing the petition.

In Michigan, Mr. Gomez’s attorney (Liisa Speaker of Lansing Michigan) has indicated that she will appeal the ruling to the Michigan Supreme Court. You can monitor the case developments here. To track developments on the basic law, you can click here to see cases citing to the Third Circuit’s decision. Sooner or later the US Supreme Court will have to decide this issue.

Michigan Supreme Court Bars Insurance Commissioner from Retroactively Changing the Moral Character Standards for Insurance Agents.

Most professional licenses in Michigan require that the applicant possess good moral character and turpitude. MCL 338.41. Increasingly, however, the Legislature is writing a “no prior record” clause into individual licensing statutes negating much of the impact of the laudable act. Mr. King was licensed as an insurance agent with an automobile related felony conviction. He was originally licensed by the Insurance Commissioner, but the license was later revoked without notice based on an agency decision that a former offender was never entitled to licensure. The Circuit Court reversed stating that nothing in the new laws retroactively revoked the old laws as applied to individuals already licensed. The Court of Appeals affirmed and now a narrowly divided Michigan Supreme Court affirmed. King v State, Supreme Court No. 140684.

Given the departure of Justice Davis from the Court (who was in the majority), a motion for rehearing seems likely. What seems particularly disturbing is the extent that the agencies are willing to go to obviate this important Act. With the U.S. Supreme Court finding in Graham v Florida that people can change, you’d think that agencies would recognize the same.

New Innocence Project Report Says Michigan and Other States Are Failing to Help Exonerated.

A report released on December 2, 2009, by the Innocence Project entitled “Making Up for Lost Time: What Wrongfully Convicted Endure and How to Provide Fair Compensation,” finds devastating gaps in the support and services that states provide to people exonerated after serving years in prison for crimes they didn’t commit. Only 60% of the people exonerated have received any compensation, and much of this compensation has been inadequate. Michigan doesn’t currently provide any compensation for exonerees. The Innocence Project has stated that they will make the passage of a compensation bill in Michigan one of their priorities. Read More...

Delaware Supreme Court Rules that a Pardon Removes SORA Registry Obligations

Reversing the decision of the lower court, the Delaware Supreme Court ruled that an individual’s rehabilative pardon was grounds for removal from the state court sex offender registry. Heath v State, Delaware Supreme Court No. 2008-550

Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS

In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the Kentucky Supreme Court on Monday. The Attorney General’s spokesperson (Allison Martin) stated that he will renew his request with the high court.
The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list. The Kentucky Attorney General’s Office has appealed the ruling to the United States Supreme Court and has sought a stay of the Kentucky ruling pending their certiorari petition. Click here for the ky baker ruling

California Supreme Court to Review Jessica's Law

California (like many states) passed its own variant of Jessica’s Law which prohibited convicted sex offenders from living close to parks, schools, and other places which people believe children are likely to congregate. California granted an exception to the law to people who already lived near such places, but any subsequent arrest for any offense required the offender to move. J.S. was convicted of sexually assaulting a fifteen year when he was sixteen. For years J.S. continued to live with his mother. Then he received a ticket for driving the wrong way down a street, which was technically a misdemeanor under California law. This required him to move from the home he was living in for years. Jessica’s law is being challenged on constitutional grounds. Some former supporters of the law have changed their position because the law has made sex offenders homeless, more transient, and therefore potentially more dangerous. Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts To read the Silicon Valley (formerly San Jose) Mercury News story on this case, click here. To read the Contra Costa Times summary of the case, click here.

Michigan's SORA Declared Unconstitutional As Applied to Youthful "Romeo"

Individuals convicted of sex offenses in Michigan lives a subhuman life even after they are off parole. Michigan’s sex offender registry forces individuals to register for twenty-five years for most offenses and this registration might as well be the kiss of death. Generally, the Courts have been unsympathetic. In People v DePiazza, Court of Appeals No. 284946, the Court of Appeals finally struck down one application of Michigan’s Sex Offender Registration Act (SORA).


Robert DiPiazza was convicted at the age of eighteen for consensual sex with his then fifteen year old girl friend. (A “Romeo and Juliet” offense). There was no dispute that the act was consensual, the couple subsequently married and are expecting their first child. At the request of the victim’s family, Mr. DiPiazza was given diversion under the Holmes Youthful Trainee act for the reduced offense of attempted third-degree criminal sexual conduct and sentenced to probation. In 2005, he completed the probation and the charges were dismissed.


Despite this, Mr. DiPiazza has been forced to register on the sex offender registry and could not hold a job because he was a “registered sex offender.” A unanimous panel fo the Michigan Court of Appeals found that the law was cruel or unusual punishment as applied.


Congratulations to Miriam Auckerman of Legal Aid of Western Michigan, the ACLU of Michigan, and the many other civil rights groups who won this very difficult victory!

COA Says that Beastiality is Not a "Sex Offense" for SORA

Wendrow Family May Face a Steep Climb to Justice

Expunged: Think Again