Former Offenders

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.

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.

COA Defines SORA's Catch-All Registration Requirements


Michigan’s Sex Offender Registration Act (“SORA”) requires an individual “who is convicted of a listed offense after October 1, 1995, to register as a sex offender.” MCL 28.723(1)(a). The definition of “listed offense” in MCL 28.722(e) includes a catchall provision, MCL 28.722(e)(xi), which states that “[a]ny other violation of a law of this state or a local ordinance of a municipality that by its nature constitutes a sexual offense against an individual who is less than 18 years of age,” constitutes a listed
offense.

Last week, in People v Atlhoff, the Michigan Court of Appeals had the opportunity to clarify what the registration obligations were under this provision. Mr. Althoff had been convicted of downloading child pornography from the internet. The question was whether this act constituted a “sexual offense against an individual who is less than 18 years of age” under the Act.

Previously, in People v Meyers, 250 Mich App 637, 649 NW2d 123 (2002), the Court stated that in catch-all cases, a Court was required to look at the specific facts of a given case to determine whether the Defendant’s conduct fell within the catch-all. In December of 2006, the Michigan Supreme Court remanded Althoff to the Court of Appeals as on leave granted. In its remand order, the Michigan Supreme Court stated in dicta that the language in Meyers was dicta. People v Althoff, 477 Mich 961 (2006). In People v Golba, the Court of Appeals stated that this language was holding. In Altholff, the Court of Appeals found that Golba was wrongly decided because it ignored the remand order in Althoff. In other words, the Court of Appeals created a “wrongly decided” exception to Michigan’s “first out rule.” Because the prior panel failed to detect or credit a suggestion that Meyers was dicta, the decision was invalid. Even though Michigan’s court rules require to follow a post-1990 published Court of Appeals decision, Atlhoff chose not to. In the process, the Court has inadvertently created an exception which will swallow the rule. The authors of this decision will regret their words.

Megan's Lists Expand to Drug Offenders in TN & KS

According to the Tennessean, Tennessee and Kansas have created sex offender style registries for persons convicted of possessing methamphetamine. When will the craziness stop? There is no showing that these registries stop recidivism and there is strong evidence of exactly the opposite -- they directly impede a person’s ability to resume a normal life.