Restoration of Rights Project – Michigan Profile
Guide to restoration of rights, pardon, sealing & expungement following a Michigan criminal conviction
Collateral Consequences of Criminal Convictions: A Legal Outline for Michigan
Miriam Aukerman, Reentry Law Project, Legal Aid of Western Michigan (2008)
Collateral Consequences of a Criminal Conviction
Tracey W. Brame Ed., ICLE (2012)
Michigan Poverty Law Program Reentry Law Wiki
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- Two significant new occupational licensing laws enacted in 2021 (2/4/2021) - After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia. D.C.'s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District. The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project. It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board's record. The Institute for Justice has described the "landmark" new D.C. law as "the best in the nation, second only to Indiana." The new Ohio law, HB 263, is more complex and less protective than DC's, requiring licensing boards to publish lists of two types of convictions: those that "shall" be disqualifying (overcome only by a court-ordered certificate) and those that "may" be found disqualify based on their "direct relationship" to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those "directly related," the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019. Michigan's governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of "good moral character." While Michigan's licensing law could use improvement, it contributed to the state's earning the title of Reintegration Champion of 2020. Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, noted that "[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy." We reprint the discussion of 2020 licensing reform from our report here: In 2020, 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies. Four states (Idaho, Iowa, Missouri, and Rhode Island) regulated licensing agencies statewide for the very first time; two other states (Utah and West Virginia) improved upon their first venture into licensing regulation in 2019; and Pennsylvania made improvements in licensing standards originally adopted in an earlier era of reform in the 1970s. These enactments continue a trend begun in 2017 that has transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people. As explained in our national report The Many Roads to Reintegration, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license. Occupational licenses offer a gateway to the middle class, particularly for people who may have learned a trade or gained a skill while in prison. The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s. In recent years it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group. Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach: they 1) limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence; and 2) insist that individual denials be grounded in findings of rehabilitation and public safety with rigorous due process guarantees, making agency procedures more transparent and accountable. In the IJ model, applicants may seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements. Some of the more familiar provisions of these new laws are drawn from the IJ or NELP models: Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation Prohibited considerations: Barring consideration of certain types of records and other types after a specified time Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases Accountability: Including reporting requirements intended to monitor agency compliance. The new occupational licensing laws in 2020 are summarized below: Colorado enacted the "Occupational Credential Portability Program," which authorizes approval of an application for reciprocal licensure by anyone licensed in another jurisdiction, apparently without regard to whether they meet Colorado's standards for licensure that relate to consideration of criminal record, unless they have committed an act that would be grounds for disciplinary action in Colorado (HB 20-1326). Colo. Rev. Stat. §§ 12-20-202(3)(a), (b), (f)(III). In addition, HB 20-1424 creates "social equity licenses" to operate legal marijuana businesses, available to people who: (1) themselves or their family members were arrested, convicted, or subject to a civil forfeiture for a marijuana offense; (2) have a low income; or (3) live in an "opportunity zone" or "disproportionate impacted area.” Iowa had no general law regulating consideration of criminal record in occupational licensing prior to 2020. HF 2627 adds a new section to Chapter 272C of the Iowa Code to impose an unusually robust and license-specific “direct relationship” test on all but a few health-related licenses. Each covered board must provide a list of offenses that “directly relate[] to the duties and responsibilities of the profession,” and may not deny a license based on non-conviction records or any finding that an applicant “lacks good character” or “suffers from moral turpitude.” Iowa Code Ann. §272C.15. Under the new section, an agency “shall grant” an exception to an individual “who would otherwise be denied a license due to a criminal conviction” if the individual is determined to be rehabilitated and an “appropriate candidate for licensure” based on a list of factors that include the nature and seriousness of the crime, the passage of time, and other mitigating or aggravating factors. There is a rebuttable presumption that an applicant is “rehabilitated” five years after release from incarceration unless the conviction was for certain violent or sexual crimes. The board shall consider whether a “certification of employability” has been issued and any letters of reference. A prospective applicant may petition for a preliminary determination, for which a board may charge a fee of $25. Grounds for denial must be in writing, and the applicant must be given an opportunity to appeal and informed that evidence of rehabilitation will be considered on reapplication. The board’s findings on each criterion specified must be “sufficient for review by a court.” The board has the burden of proving direct relationship. An individual may be requested to submit a “complete criminal record,” which includes the complaint and judgment for each conviction. Idaho had no general law regulating consideration of criminal record in occupational licensing, prior to 2020. SB 1351 adds a new chapter 94 to Title 67 of the Idaho Code, inter alia establishing a committee "to study and review occupational licensing and certification laws in general in order to determine, as applicable, how the legislature may be able to ease occupational licensing barriers while still protecting the public health and safety." The new law authorizes a non-binding preliminary determination as to whether a person's conviction would be disqualifying, and establishes a multi-factor test to determine whether a person's criminal record is "currently relevant to the applicant's fitness" to engage in the occupation. A license may not be denied on the basis of "vague or generic terminology related to a criminal conviction, including but not limited to 'moral turpitude' or 'moral character.'" "Where such terms appear in code or rule with respect to a criminal conviction, a licensing authority shall conduct a relevancy evaluation pursuant to subsection (1) of this section." The "relevancy" standard was inserted in a variety of licensing chapters as a basis for denial or revocation of a license, replacing a formulation that permitted adverse action based on "conviction of any felony, or conviction of any other crime involving moral turpitude." It was also inserted into the rules of the division of human resources and the personnel commission that regulate public employment in the state. Louisiana’s SB 354 provides for issuing a card to individuals leaving prison that includes a list of all vocational licensing and certification programs completed while incarcerated. Michigan enacted a series of bills applicable to occupational licensure to limit agency consideration of certain types of criminal record. HB 4488 and related bills retained the standard of “good moral character” as a basis for restricting licenses to those with a criminal record but limited it for most licenses to exclude non-convictions, misdemeanors that do not carry a prison term, and convictions “unrelated to an individual’s capacity to serve the public.” The new law requires each licensing agency to specify the crimes that are likely to fall into the last-mentioned category. They must also provide a statement of reasons in the event of denial (“including a complete record of the evidence upon which the determination was based”), an opportunity to appeal, and judicial review. An annual report must be submitted with the number of applications denied because of lack of good moral character and a summary of the convictions on which denials were based. Missouri provided very little protection to a person with a criminal record in the licensing process prior to 2020. The Fresh Start Act (HB 2046) requires that a disqualifying criminal record must be "directly related" to the license, also specifying that certain violent crimes “shall” be considered “directly related” to whatever license is involved even if sentence is not imposed. Drug crimes “may” be disqualifying for certain occupations, while fraud offenses “may” be disqualifying for other occupations. If convicted of a lesser included offense, the period of disqualification as “directly related” lasts only for four years after release from incarceration. “Direct relationship” is determined by a multi-factor test. Applicants may apply for a preliminary determination that is binding on the agency. If a person is denied a license, they have a right to a hearing, as well as written findings addressing each factor on which the agency relied sufficient for a reviewing court. “In any administrative hearing or civil litigation authorized under this subsection, the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.” The new law does not apply to significant classes of licenses, including teachers, various health professionals, accountants, real estate brokers and agents, and peace officers. Pennsylvania enacted SB 637 to bolster its weak occupational licensing law dating from the 1970s. SB637 supersedes any law that disqualifies an individual for a license or provides for “good moral character” findings, requires that there be a “direct relationship” between the crime and the profession and whether licensing the individual poses a public safety risk, as determined by an “individualized assessment” under a long list of specified factors. It excludes those convicted of sexual offenses from health care licensure and establishes a separate set of standards for those convicted of violent crimes. Prohibits consideration of juvenile adjudications, non-conviction records, and records of convictions that have been expunged or sealed). It also authorizes restricted licenses for applicants who cannot immediately demonstrate fitness due to a criminal conviction, and it provides for a “preliminary determination” for applicants considering undergoing training for a license, which is binding unless the crime is one on the list of crimes “directly related,” in which case it may be subject to further inquiry when a formal application is filed. The law falls short in not ruling out consideration of dated or minor convictions, although it does rely on a public safety standard for denial of a license and gives those recently released from prison a chance to demonstrate their abilities. While existing law requires boards to defend record-related denials with written reasons, neither old nor new law provides an opportunity for an administrative appeal, requiring a disappointed applicant to file a lawsuit. Rhode Island enacted its first generally applicable law regulating the occupational licensing process, extending it as well to professional and business licenses issued by state agencies. S 2824 applies a “substantial relationship” standard to licensing boards under most departments of state government, establishes standards for determining substantial relationship, excludes certain records from consideration, allows applicants to establish rehabilitation by detailed standards, provides detailed procedures in the event of denial, suspension or revocation, and includes accountability standards. Records that may not be considered include non-conviction records, juvenile records, expunged records, records of misdemeanors that may not be punished by incarceration, and any crime that is not substantially related. If a licensing authority intends to deny, suspend, or revoke an occupational license solely or in part because of a conviction, the person must be given reasons in writing, and if the conviction is “substantially related” an analysis under each of the criteria. The person must be permitted to respond and given an opportunity to appeal. Every agency must post on its website each year a report with “(1) the number of applicants granted licenses, the number of applicants denied licenses for any reason, and, to the extent available, the demographic breakdown of the applicants, including race, ethnicity, and gender, and city or town of residence; and (2) The number of applicants denied solely, or in part, because of a criminal conviction. The law took effect on January 1, 2021. Utah’s legislature acted to enhance a 2019 law that provided for a preliminary determination of qualification for licensure applicable to many state licensing boards, upgrading its standard for decision-making from "reasonable relationship” to "substantial relationship.” SB 201 takes regulation of licensing a step further, establishing heightened standards for consideration of licensure of applicants with criminal records. Licensing boards must “provide individualized consideration to the applicant or licensee,” and “determine whether the criminal conviction bears a substantial relationship to the applicant’s or licensee’s ability to safely or competently practice the occupation or profession.” In this determination the board will “consider the applicant’s or licensee’s current circumstances” measured by a number of the customary factors such as age when offense committed, time since conviction, and various indicia of rehabilitation. Applicants are provided an opportunity to appeal a denial. § 58-1-402. Certain convictions are per se “not evidence of unprofessional conduct,” including non-convictions, and convictions where seven years have passed since release from incarceration without a conviction or guilty plea. Convictions for violent and sexual crimes, and for fraud or embezzlement are excepted. § 58-1-501(4). Vermont has very weak regulation of occupational licensing agencies, allowing denial or discipline for “unprofessional conduct” based on “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.” 233 did nothing to tighten this standard, providing only that its licensing boards must offer interested persons a pre-application determination regarding whether their criminal background will be disqualifying. This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for this so-called “second chance determination,” and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board. Washington enacted HB 2870 to create a “social equity program” to reduce barriers to entry to the cannabis industry for individuals and communities most adversely impacted by the enforcement of cannabis-related laws. West Virginia enacted two laws (HR4352 and HR4353) extending regulation enacted in 2019 to a variety of different licenses, applying a "rational nexus" standard for denial, lifting mandatory bars after five years, and authorizing a preliminary determination.
- Sex offender registration litigation: punishment and free speech (2/15/2019) - In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes. First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, "arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community." Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement. Michigan v Snyder, No. 153696; People v. Betts, No. 148981. In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama's sex offender registration law ("ASORCNA") violates the First Amendment by branding state-issued ID cards with "CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements. Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019). This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not "punishment." These two caselaw developments are discussed further below. Michigan cases: As the AG's amicus briefs point out, nine state high courts have invalidated registration requirements on the ground that they constitute punishment. A case in the Illinois Supreme Court (in which CCRC filed an amicus brief) could have made it ten, but the court dismissed the appeal, finding a lack of jurisdiction to consider the defendant's constitutional challenge to his obligation to register on a direct appeal of his criminal conviction. People v. Bingham, 2018 IL 122008 (Ill. 2018). The Bingham case had also raised potentially significant issues in challenging the defendant's registration obligation under the Due Process Clause. So too does a case currently pending before the Pennsylvania Supreme Court, Commonwealth v. Torsilieri, in which CCRC will also be filing as amicus. (In Commonwealth v. Muniz, Pennsylvania's registration requirement was held to be punishment, and its retroactive application barred on ex post facto grounds.) The day may be at hand when courts begin to raise questions about not only the retroactive—but also the prospective—application of such punitive collateral consequences. At that point, the U.S. Supreme Court will likely take another look at its 2003 rulings upholding the constitutionality of registration requirements in Alaska and Connecticut on the theory that the registration requirement at issue in those cases constituted regulation not punishment. A 2017 decision from the District of Colorado provides an example of how courts may approach constitutional challenges to the prospective application of registration requirements, on the understanding that sex offender registration requirements are punishment. See Millard et al., v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017). After a bench trial, Senior District Judge Richard P. Matsch held that Colorado's Sex Offender Registration Act ("SORA") is unconstitutional as applied to the three plaintiffs. Specifically, he held that SORA: constitutes punishment under the Eighth Amendment ("the effect of publication...is to expose the registrants to punishments inflicted...by their fellow citizens"); is cruel and unusual ("Where the nature of such punishment is by its nature uncertain and unpredictable, the state cannot assure that it will ever be proportionate to the offense"); violates substantive due process ("plaintiffs have shown that the punitive aspects of Colorado's sex offender registration scheme enter the 'zone of arbitrariness' that violates the due process guarantee of the Fourteenth Amendment"); and violates procedural due process as applied to one plaintiff (subjecting him to "Kafka-esque procedure[s]" when he petitioned to de-register). Judge Matsch's holding in Millard is currently on appeal in the Tenth Circuit, No. 17-1333. Alabama case: In Doe v. Marshall, describing the Alabama registration requirement as "the most comprehensive and debilitating sex-offender scheme in the nation," Judge Watkins concluded that because Alabama "denies that ASORCNA is designed to 'punish' offenders...once a person serves his full sentence, he enjoys the full protection of the Constitution." In other words, if registration requirements are not part of punishment, they must survive the searching scrutiny of First Amendment review. Conducting that review, Judge Watkins determined that branded identification cards are a content-based regulation of speech subject to strict scrutiny; and they do not survive that scrutiny as applied to plaintiffs because using “CRIMINAL SEX OFFENDER” in bold red letters on ID cards, as opposed to a single letter, is not the least restrictive means of allowing law enforcement to identify sex offenders. Next, he concluded that extensive internet-use reporting requirements are facially overbroad so as to unduly chill a registered person's "ability and willingness to speak on the Internet," and thus are unconstitutional. However, he ruled against the plaintiffs on their Fourteenth Amendment claims, despite their making "several good legal arguments," finding that one claim failed on the merits, and that the plaintiffs lacked standing to pursue the rest.
- Michigan set-asides found to increase wages and reduce recidivism (2/27/2018) - Preliminary results of an empirical study by two University of Michigan law professors show that setting aside an individual's record of conviction is associated with "a significant increase in employment and average wages," and with a low recidivism rate. We know of only one other similar study, conducted by researchers at the University of California at Berkeley, and it came to essentially the same conclusion. One relevant difference between the two studies is that in Michigan set-aside results in sealing of the record, while in California it does not. Such studies are rare because of the difficulty of obtaining data, particularly where relief seals the record, but they are a very important way of advancing a reform agenda. Thus, Professors Sonja Starr and J.J. Prescott propose that their research "provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records." In the hope that their work will encourage others to undertake similar research, we reprint the entire report below. Project Outcomes Report: Award No. 1023727 Project Title: Evaluating the Impact of Criminal Record Set-Aside Laws on Recidivism and Socioeconomic Outcomes Co-PIs: Sonja Starr and J.J. Prescott Tens of millions of Americans have criminal records, which often carry collateral socioeconomic and legal consequences long after the criminal sentence is completed. To provide relief from these consequences, some states offer procedures by which certain offenders can have their records sealed or “set aside.” In Michigan, during the period of this study, set-asides were available only to offenders with a single criminal conviction, who may apply for them beginning five years after sentencing or release from incarceration. A set-aside removes the record from public view and from background-check databases, eliminates any applicable state occupational restrictions, and legally entitles the recipient to represent herself as having no record in employment proceedings. Accordingly, one might expect that recipients’ employment prospects would be improved. However, it is not obvious that one should expect this effect to be substantial, because people with records often face other employment hurdles and because the employment effects of the type of limited and older records for which set-asides are given are not known. No prior empirical study has quantified the effect of set-asides on employment, and in this study, we sought to do so. A principal challenge in studying set-asides is that such records, after the fact, are by definition no longer publicly available. However, pursuant to deidentification conditions, we obtained set-aside records from the Michigan State Police and linked wage information on the same individuals from Michigan’s unemployment insurance system. This enabled us to track approximately 4,000 set-aside recipients’ wages and employment status on a quarterly basis for periods of at least three years before and after the set-aside was received. Having received our data later than intended, we continue to complete final analyses and prepare papers for submission for publication; the remaining work entails comparisons between set-aside recipients and comparable non-recipients, for whom we also obtained similar data. Here, we summarize the results of preliminary analyses focused on set-aside recipients alone, before and after receipt of the set-aside. Our analyses are based on regressions that account for pre-set-aside trends for these individuals, as well as for changes and fluctuations in the economy. We find that receipt of a set-aside is associated with a significant increase in employment and average wages. Most of the gain is observed in the first year after set-aside receipt, during which recipients’ probability of employment rises steadily by a total of about 6.5 percentage points (from about 58.6% to about 65.1%--that is, recipients became about 1.11 times as likely to be employed). Over the same one-year period, recipients’ average quarterly wages rose by about 22%. This increase is too large to be fully attributed to the gain in employment probability—the implication is that set-aside recipients are often able to find higher-paying jobs, in addition to increasing their chances of finding work in the first place. These trend-change estimates are obtained after filtering out preexisting trends, which are negative for most of the two years before the set-aside and flat in the six months immediately before the set-aside. That is, applicants are somewhat more likely to apply for set-asides after a period of unemployment. It is possible that some of the upturn in employment and wage trends for set-aside recipients could be accounted for not by the set-aside itself, but by mean reversion or by motivated job-hunting (that is, applicants might tend to seek set-asides at a time when they are especially motivated to find work, or to find higher-paying work). Our ongoing analyses seek to disentangle these competing explanations. Wage and employment gains were similar across racial groups, but were much larger among females (whose wages rose 41% within a year after receiving a set-aside, compared to 15% for males). Females represented 47% of set-aside recipients. About 58% of recipients were white and about 37% were black, with the balance from other groups or unidentified. Approximately 71% had not faced incarceration for their convictions, and only 1% had been incarcerated for more than a year. Approximately 39% of the set-aside convictions were felonies. Finally, because we had access to applicants’ full criminal records, we also assessed their recidivism probability. Fewer than 4% of set-aside recipients were rearrested within five years of the set-aside, and fewer than 2% were reconvicted. These are extremely low rates; we note for comparison purposes that in a five-year period, Michigan police make about 13 arrests per 100 people in the general population. In addition to contributing to researchers’ understanding of the employment effects of having a criminal record, this research provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records. It provides a clearer picture of who set-aside laws affect and what the stakes are, in terms of benefits for recipients and public safety concerns. Moreover, the development of a procedure within Michigan state agencies to match deidentified criminal record and unemployment insurance data could help to benefit future researchers who wish to investigate relationships between socioeconomic variables and criminal offending.
- Michigan sex offender registration law held unconstitutional (1/31/2018) - On January 24, the Michigan Supreme Court held the state's sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski. Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions. However, several years later a registration requirement was enacted and applied retroactively to his case. Because the court decided Temelkoski's case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment. However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.” While a win is a win, we must wait another day for a decision on the constitutionality of Michigan's registration scheme under the Ex Post Facto Clause and the State's version of the Eighth Amendment. An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows. On January 24, in People v. Boban Temelkoski, the Michigan Supreme Court ruled that retroactive application of a sex offender registration statute to a man who pleaded guilty to a sex offense under a state diversionary statute violated his right to due process under the state and federal constitutions. The ruling reinforced the principle that the government must follow through on promises it makes to defendants who waive the fundamental constitutional right to a jury trial and plead guilty. Because the petitioner prevailed on due process grounds, the court did not need to address his claim that application of the registration statute in this case constituted constitutionally impermissible punishment. On March 4, 1994, Boban Temelkoski pleaded guilty as charged to one count of second-degree criminal sexual conduct in violation of MCL 750.520c(1)(a). Temelkoski was sentenced to three years of probation supervision, subject to the Holmes Youthful Trainee Act (HYTA), MCL 762.11, et. seq. Under HYTA, certain young offenders between the ages of 17 and 20 may be assigned “youthful trainee” status and ultimately have their cases dismissed and their records sealed. MCL 762.11(1), as amended by 1993 PA 293. At the time Temelkoski pleaded guilty, HYTA provided that: [a]n assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime, and the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee. MCL 762.14(2). In October 1995, the state Sex Offender Registration Act (SORA) took effect. SORA retroactively defined Temelkoski’s youthful trainee adjudication as a “conviction” that required him to register as a sex offender for 25 years. See MCL 28.721 et seq., 1994 PA 295 § 3. On April 16, 1997, Temelkoski successfully completed his traineeship. His case was dismissed with prejudice and the record was sealed pursuant to HYTA. But Temelkoski remained a registered sex offender under SORA. Over the following years, amendments to SORA imposed increasingly onerous restrictions on Temelkoski, including lifetime registration. See, e.g., 2011 PA 17, §§ 2(w)(v); 5(12). Yet, when the Michigan legislature amended its laws in 2004 to exclude successfully discharged youthful trainees from sex offender registration requirements, this amendment was not made retroactive and therefore did not benefit Temelkoski. See 2004 PA 240, § 2(a)(ii). In 2012, Temelkoski filed a motion in Wayne County Circuit Court for removal from the sex offender registry, which the court granted after stating that SORA constituted punishment and was an ex post facto law as applied to Temelkoski. See People v Temelkoski, 859 N.W.2d 743, 749 (Mich. Ct. App. 2014). After the Michigan Court of Appeal reversed the trial court judgment, Id. at 748, the state supreme court granted leave to appeal. The court’s ruling relied exclusively on Temelkoski’s expectations under his plea agreement, applying the principle that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). Evaluating the circumstances of Temelkoski’s plea agreement under the Santobello principle, the justices concluded that he reasonably relied on possible adjudication under HYTA and the “express promise that upon successful completion of his youthful training, he would not have a conviction on his record or suffer any related civil disabilities.” The court reached this conclusion after observing that Temelkoski pleaded guilty to the principal charge against him and did so only after he had been screened for youthful trainee eligibility: Because [Temelkoski] pleaded guilty on the basis of the inducement provided in in HYTA as effective in 1994 (i.e., before SORA's effective date), was assigned to HYTA training by the trial judge, and successfully completed his HYTA training, retroactive application of SORA deprived [Temelkoski] of the benefits under HYTA to which he was entitled and therefore violated his constitutional right to due process. Justice Kurtis T. Wilder dissented from the order, stating that he would have remanded the case to the trial court for further factual development. Justice Brian K. Zahra joined Justice Wilder's dissent. Although the court’s order did not address whether SORA constitutes constitutionally impermissible punishment, briefs filed by the parties and amici addressing all six questions and can be found here.
- New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<
- Michigan sex offender registration amendments held unconstitutional (8/26/2016) - A federal appeals court has concluded that Michigan's amendments to its Sex Offender Registration Act (SORA) "impose[] punishment" and thus may not constitutionally be applied retroactively. See Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016). Here is the concluding analysis from the Sixth Circuit's unanimous panel decision reaching this result: So, is SORA’s actual effect punitive? Many states confronting similar laws have said “yes.” See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that [consistent with the Supreme Court's holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena. A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law. SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information. We conclude that Michigan’s SORA imposes punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
- President promises a more “open” pardon process, more pardon grants (3/11/2015) - During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term. Responding to a criminal defense attorney who asked what she could do to "increase the number of federal pardons," the President explained that he was taking a "new approach" to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to "open up" the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief: [W]hen I came into office, for the first couple of years I noticed that I wasn't really getting a lot of recommendations for pardons that -- at least not as many as I would expect. And many of them were from older folks. A lot of them were people just looking for a pardon so they could restore their gun rights. But sort of the more typical cases that I would have expected weren't coming up. So I asked Attorney General Holder to work with me to set up a new office, or at least a new approach, inside the Justice Department. Because historically, what happened was the President would get a big stack of recommendations and then he could sign off on them -- because obviously, I don't have time to go through each request. And so what we've done now is open it up so that people are more aware of the process. And what you can do is contact the Justice Department. But essentially, we're now working with the NAACP, we're working with various public defenders offices and community organizations just to make people aware that this is a process that you can go through. The President advised that "typically we have a pretty strict set of criteria for whether we would even consider you for a pardon or commutation," and directed the inquirer to the Justice Department website where he said those criteria can be found. So my first suggestion would be to go to the Justice Department website. If the person doesn’t qualify because they may have served time but there were problems when they served time, or if it was a particularly violent crime, or they may just not fit the criteria where we would consider it -- a lot of what we’re focused on is non-violent drug offenses where somebody might have gotten 25 years, and she was the girlfriend of somebody and somehow got caught up, and since then has led an exemplary life, but now really wants to be able to start a new career or something like that. That’s the kind of person, typically, that would get through the process. So, a couple of things about the President's comments. As in his BuzzFeed interview ten days ago, and as reported by Greg Korte in USA TODAY, the President seems genuinely willing to consider requests for full pardon from people who have completed their sentences and "led an exemplary life, but now really want[] to be able to start a new career." This is good news. President Obama has taken a commendable interest in prisoner requests for sentence commutation, but his record of granting full pardons to date has been disappointing: Available statistics indicate that he has granted fewer full pardons than any full-term president since John Adams. On the other hand, the President's "new approach" to handling clemency requests, and his promise of a more "open" pardon process seems so far not to have materialized. In fact, the Justice Department's pardon process appears to be more opaque and overburdened than ever before. This is largely because of the "clemency initiative" announced by the Attorney General in April of last year, which invited federal prisoners serving long prison terms to apply for commutation of sentence. Not surprisingly, many have accepted this invitation. The Washington Post reported on February 29 that "more than 35,000 inmates — about 16 percent of the federal prison population — have applied to have their sentences shortened under the Justice Department-led initiative," either directly with the Office of the Pardon Attorney (OPA), or with the consortium of private organizations known as Clemency Project 2014. Most of the applications are being processed through this private screening process. The Post reports that "a complicated review process" has "slowed" the processing of this "massive influx of applications." After a full year, no grants have yet been made to applicants vetted by Clemency Project 2014, and according to the Post article it has to date submitted only 14 petitions to be considered for clemency. In addition to the thousands of prisoner petitions, more than 800 applications for full pardon have been filed with OPA, some of which have been fully investigated and awaiting disposition for some time. While it is true (as the President said) that many pardon petitioners are interested in restoration of their firearms rights (there is no other way), or are simply seeking official recognition that they have paid their debt to society, many others are badly in need of relief from the harsh consequences of conviction in the workplace and in the community. With DOJ resources and attention focused on commutation requests, pardon cases appear to have been put on the back burner, and the newly appointed Pardon Attorney has so far declined requests to meet or speak about this neglected aspect of her office's workload. Never before in our history has the pardon power played a more important role in the justice system, and never before has the official pardon process seemed so dysfunctional. It is understandable that the President would be reluctant to use an extraordinary constitutional power to address systemic problems with the legal system, but then one might expect to see him encourage legislative substitutes for pardon, such as the judicial certificates whose enactment in Illinois he himself secured a decade ago, or even the federal expungement proposal sponsored by Senators Cory Booker and Rand Paul. The Justice Department has available to it statutory authority for seeking sentence reduction from the courts, but it has been unwilling to use it except for prisoners who are dying or completely disabled. President Obama's comments expressing impatience with the output of the Justice Department's pardon process are eerily reminiscent of President Bill Clinton's comments expressing frustration with the pardon process shortly before the end of his term: I have done--I haven't seen the final numbers, but before the last batch at least, I had done fewer than any President in almost 30 years. And part of that, frankly, is the way the system works, something I'm not entirely satisfied with. The consequences of President Clinton's dissatisfaction with the official pardon process at the end of his term are well known. President Bush experienced a similar disappointment in the official process, and attempted to warn his successor. George W. Bush, Decision Points 105 (2010)("“On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system. I gave him a suggestion: announce a pardon policy early on, and stick to it.”) Let us hope that there is still time before the end of his term for President Obama to get what he wants from the Justice Department's pardon process, something Presidents Clinton and Bush were not able to do, or to put in place a substitute for it. If past is prologue, this will not happen if the Justice Department is left to its own devices. Getting the Justice Department's pardon process to deliver a substantial number of favorable recommendations, whether in commutation or pardon cases, will take direct hands-on intervention from the White House, by people who have an understanding of how the process can and should work to serve the presidency as well as the American public. Otherwise, one can predict only a token number of commutation grants and a scrum of pardon favor-seekers outside the White House Counsel's door in the final days of President Obama's term. He can't say he wasn't warned.
- Moral panic over sex offenses results in cruel and self-defeating overpunishment (1/16/2015) - National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America's "moral panic" over sexual offenses, which has "created self-defeating policies, unconstitutional laws, and cruel punishments." Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk. We reprint the editorial here in its entirety, with permission. It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest. I can think of no area of the criminal law, except perhaps international terrorism, into which contemporary American society has terrified itself into more ignorance than this. One of the guiding principles of western philosophy, etched in same Greek language spoken by Socrates and Plato into Apollo’s shrine at Delphi, is the maxim “Know Thyself.” When it comes to the darker side of human sexual conduct, we’d rather not. To do so will almost certainly force us to reckon with the fact that many of us aren’t the neat and tidy sexual beings we’ve convinced ourselves we need to be. For a dangerous minority, certain impulses emanating from this darker side—dark in the twofold sense of being both dangerous and unknown—result in obvious and devastating social harms, especially against children. Such atrocities against the innocent and vulnerable inevitably cause panic and fury among adults charged with protecting them. However understandable these emotions are among those victimized by these crimes, allowing them to form the bases of our law and policy can only be self-defeating. The proper response to these harms is to harness the spirit of inquiry and problem-solving to discern their ultimate causes so as to better prevent them. The drafting and enforcement of our criminal sexual conduct laws, particularly those targeting crimes against children, are driven by a powerful collective feeling of visceral revulsion. Our shared emotional response to these crimes has created self-defeating policies, unconstitutional laws, and cruel punishments. We aren’t reasoning toward justice and prevention. We’re raging toward vengeance—and are abandoning basic constitutional values in the process. We suffer from a problem as ancient as it is apparently incurable— how to prioritize enlightenment over prejudice and devise a system capable of fairly judging a small and intensely hated minority. Only in this instance the problem is especially acute because the rancor toward the minority group is especially virulent. Sex offenders are the safest and easiest people to hate. Politicians, a category that certainly includes judges, never lose by condemning them and never win by coming to their defense. To argue too forcefully even for core legal protections afforded in other types of criminal cases is, in many contexts, to risk ostracism and raise suspicion. For this reason, politicians routinely lapse into self-serving demagogy, often deploying morally charged and unhelpful metaphysical terms like “evil” as substitutes for scientific or clinical concepts that might inform and enlighten. Demonizing sex offenders has become a reliable and effective campaign strategy in judicial elections. To appear “soft” toward a sex offender is to draft a campaign ad for one’s next opponent. 2014 was perhaps the best year yet for cynical judicial campaign ads showing how inflexibly punitive incumbent judges have been toward sex offenders. In my own state, Michigan, a television ad ran on behalf of two sitting state Supreme Court justices, Brian Zahra and David Viviano, entirely devoted to convincing viewers that the justices have “thrown the book at child predators” and that they will “keep affirming tough sentences.” Sex crimes represent a tiny fraction of that court’s docket, but the ad would have you think that Zahra and Viviano together composed the state’s only bulwark against an onslaught of slavering pedophiles. In “Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation,” Alexandra Stupple argues that the fears such ads engender and exploit are radically out of proportion to the actual dangers we face. Friends and family members are far more likely to sexually abuse children than strangers are. Stranger child predator cases are actually quite rare, especially when measured against public perception, and recidivism rates are lower for these types of crimes than those for many other violent offenses. The popular image of the lurking child molester is largely a “myth . . . which serves to distort perceptions of everyday risks.” This isn’t to say that such attackers don’t exist or that they don’t inflict incalculable pain and anguish when they strike. But stranger sex crimes, including those against children, don’t occur with the kind of epidemic frequency one would expect given the hysterical laws and practices that have been created to combat them. Stoking panic this way helps judges and legislators get elected. Stupple explains the psychological underpinnings that have caused and continue to sustain the moral panic against child sex offenders. Just because politicians luxuriate in chest-thumping rhetoric against sex offenders doesn’t mean that they don’t take their own message seriously. Stupple argues that the “disgust” legislators and judges feel toward sex offenders has led to their dehumanization in our courts. This dehumanization has in turn resulted in a failure in the courts’ essential function of protecting the individual liberties of criminal defendants. The more despised the accused, the more vital it is to our constitutional scheme that courts protect him or her from any temptations legislators might feel toward circumventing their rights. The failure of the courts in this regard has resulted in the continuation of a host of inhumane and ineffective punishments. These include massive, over-inclusive sex offender registries, which do far more to stigmatize and shame offenders, many of whom pose only a minimal recidivism threat, than protect the public. In many instances, inclusion on the registry is simply an internet-friendly method of public branding, what puritan judges would’ve done to Hester Prynne had laptops been available. Judges have also imposed and upheld a vast array of behavioral and residency restrictions on released sex offenders. They’re applied broadly and on a massive scale, often in purely punitive ways that make assimilation back into society even more difficult. Perhaps most troubling, both ethically and constitutionally, is the rise of civil commitment laws that redirect inmates who have served their sentences into mental institutions. These laws often function as de facto sentence-extenders. They turn medical professionals into jailers and punish the same individual twice, and the second time indefinitely, for the same offense. Stupple doesn’t deny that there are a certain number of repeat-offending sexual psychopaths from whom society must be protected. Rather, she argues that the response to this threat has been hysterical, disproportionate, and emotional rather than rational and effective. It has inflicted the double harm of exacerbating old problems, such as mass ignorance, fear, and the reinforcement of stereotypes, while creating new ones, including a metastasizing system of widespread overpunishment. Our legislatures and courts have promoted myths, exaggerated bogeymen, and recklessly fanned the flames of thoughtless rage and panic.
- Michigan takes baby steps on criminal justice reform (1/9/2015) - Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs. In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs. A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor's desk for signature. These "baby steps" leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded. Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session. In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers: a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies. Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior "minor offenses," a term that was very narrowly defined. See Mich. Comp. Laws 780.621. Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from "minor offenses" to "misdemeanors." (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated). In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside. As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers. [NOTE: Another law enlarging the basic set-aside authority was signed by the governor in early 2015. Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan's Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate. Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder. Like other states with similar employer protections--such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] -- the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6] The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a "silver level" or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department. The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country. She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.
- Jerry Brown takes back a pardon . . . really? (12/31/2014) - Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators. He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it. This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public. Governor Brown's attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying. Glen Williams Carnes was pardoned on December 24 for a 1989 drug-related offense committed while he was a teenager, for which he spent three years on probation. In the pardon document, Brown stated the Carnes had received an order from the Orange County Superior Court "evidencing ... he has lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen." This judicial order, styled a "Certificate of Rehabilitation," is the first step in the California pardon process, after which applications are submitted by the governor's office for a second vetting by the Board of Parole Hearings. Later that same day, the Times reported that [F]ederal records show Carnes was disciplined by investment regulators in May 2013. He signed a consent settlement with the Financial Industry Regulatory Authority that states he agreed to be barred from financial investment. The document alleged that he hid an outside business deal and provided investigators with "false and misleading statements that minimized and mischaracterized his involvement." Carnes did not admit guilt. Securities and Exchange Commission records show the business deal that led to the sanction became what is now Carnes' company: Global Vision Holdings, a publicly traded corporate umbrella of which Carnes is listed as CEO, chairman of the board and chief financial officer. Currently, Global Vision owns The Place Media, which publishes local magazines placed in hotels, Mamma's Best, a line of organic food products, and a financial consulting firm. However, SEC records show Global Vision's last financial report was made in late 2013. In April, it informed the SEC it could not complete its year-end 2013 filing in time "due to recent turnover in its accounting department." Upon learning from the newspapers of the FINRA sanctions, Governor Brown moved that same afternoon to withdraw the pardon, stating that he had relied to his detriment on the court's order of rehabilitation, and that in any case the pardon had not yet become final: "This information was not disclosed by the applicant," Brown's spokesman, Evan Westrup, said in a written response to The Times. "Without the certificate of rehabilitation, this individual would not have been considered for a pardon. This particular pardon has not yet been attested by the Secretary of State and it has subsequently been withdrawn." For his part, the disappointed Mr. Carnes told the Times that he planned to contact Brown's office "first thing on Friday morning as tomorrow is Christmas, to refute your allegations." The Associated Press reported that Carnes said he was unaware he needed to report the regulatory settlement on his clemency application. Stay tuned for further details in this most recent pardon soap. In the meantime, we have a couple of comments on the episode. First of all, it is not at all clear that the Governor's effort to retract a pardon he had already announced, on grounds that a ministerial formality had not yet been performed, will be held effective if challenged. The Supreme Court of Michigan recently invalidated a similar attempted retraction by Governor Granholm, there of a commutation she later regretted after protests by his victim's family. See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (June 3, 2014). See also Marbury v. Madison, 5 U.S. 137 (1803). We don't know if Mr. Carnes plans to take his case to court -- though the possibility of further embarrassment may discourage him. (This is apparently why Isaac Toussie didn't contest President George W. Bush's retraction of his pardon under similar circumstances -- a pardon that was also granted apparently without adequate staffing.) The Carnes episode also reflects poorly on the present state of the California pardon process, and on its reliability in service to the Governor. Carnes reportedly told the Times that "he went through an extensive background check that took over a year making him eligible for his gubernatorial pardon." However, that background check (presumably by the BPH and the governor's staff) evidently didn't dig very deep to reassure the Governor that Carnes was a suitable recipient of his public mercy: A simple Google search by CCRC staff finds Carnes listed on the website of the CFA Institute as an individual "currently serving public disciplinary sanctions for violations of the CFA Institute Code of Ethics and Standards of Professional Conduct or who have resigned their memberships while under investigation for industry-related misconduct." Nor was the court's certification of Carnes' rehabilitation a very effective filter in this case. Carnes was reportedly granted his COR in August 2013, several months after the FINRA sanctions were imposed. It is unclear whether the court knew of the sanctions when it granted the COR, though they would certainly seem to have reflected poorly on Mr. Carnes' rehabilitation in that context as well. Finally, while the retraction is unfortunate for Mr. Carnes, it is even more unfortunate for others who are seeking a pardon from Governor Brown, since it is inevitable that an episode like this may dampen his general enthusiasm for pardoning. This is why it is so very important that those staffing pardons for an elected official do a thorough investigation and be very sure there is nothing about a case that might cause embarrassment. Neither the BPH nor the court appears not to have done a very thorough job in this case, if our own crude Google-limited investigative efforts are any guide. And now others awaiting the Governor's favor may suffer for this poor staffing. We will have more to say in this space about the administration of the pardon power in California. We believe that its basic framework, notably its reliance on a prior judicial finding of rehabilitation, could be adapted into a comprehensive functional relief system second to none in the country.