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.
The New York Times has urged these companies to reconsider their policies.
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.
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!
Canada's CBSA Liberalizes Waiver Procedure for U.S. Visitors With a Single Drunk Driving or Other Minor Conviction
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.
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.
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.
Kentucky AG Seeks Temporary Enforcement of Its Jessica's Law Pending State's Cert Petition to SCOTUS
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
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!