Tag: Michigan

Two significant new occupational licensing laws enacted in 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. Read more

Sex offender registration litigation: punishment and free speech

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. Read more

Michigan set-asides found to increase wages and reduce recidivism

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.   Read more

Michigan sex offender registration law held unconstitutional

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. Read more

New research report: Four Years of Second Chance Reforms, 2013-2016

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<<       Read more