1. COLLATERAL CIVIL CONSEQUENCES OF CRIMINAL CONVICTIONS CAP Training October 22, 2010

2. What are Collateral Consequences? Immigration Sex offender registration Employment Licensing Housing Public Benefits Student Loans School expulsion/refusal to admit to college Parental Rights Termination Child Support Fees & Fines Drivers Licenses Firearms Jury Service Voting Public Office Civil forfeiture Limits on parental school involvement

3. I. Why Should You Care? A.Professional/Ethical Obligation Padilla v. Kentucky, 130 S. Ct. 1473 (March 31, 2010): counsel must inform client if plea carries risk of deportation. Not clear whether advice on other serious collateral consequences must also be given: “We… have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.”

4. B. The Civil Impact May Be Most Significant Result for Client BJS statistics that 60% of those convicted of felonies not sentenced to prison. Civil consequences may be even worse than criminal consequences, especially for lower-level offenders. – Deportation, sex offender registration, or loss of employment fundamentally alter person’s life. – Civil consequences can last for life, much longer than criminal penalty Unlike criminal sentence, which individually tailored, collateral consequences often imposed automatically, and therefore can be wildly inappropriate. Defendants need to know the consequences to make informed choices.

5. C.Improved Criminal Dispositions Argue civil impact is disproportionate to criminal conduct Use severity of civil consequences to argue for better criminal outcomes. – E.g. Argue for a misdemeanor rather than felony so client can keep job. Document impact of consequences (e.g. deportation, eviction, loss of employment) on innocent third parties (defendant’s family).

6. D.Risk Management and Discovery Opportunities Reduce damaging statements by clients or witnesses in ancillary civil actions with fewer protections. Use civil proceedings as discovery tools; utilize civil subpoena powers.

7. Critical Times to Assess and Mitigate Consequences Investigatory Phase Plea Negotiations Sentencing Before Incarceration Post Release – But by then may be too late because consequences may be automatically linked to conviction.

8. Employment Consequences: Why consider barriers to employment? 2/3 of employers won’t hire people with criminal records 96% of large employers were conducting background checks in 2004, compared to 51% in 1996

9. How Do You Know Whether Employment Will Be Affected? Criminal record, particularly felony record, in and of itself has huge negative impact on employability. – Because many employers have “no felon” policies, any felony record will have huge employment consequences. Statutory barriers may mean a person loses an existing job, or cannot work in his/her field. – Complex patchwork of state and federal restrictions.

10. Statutory Barriers to Employment State and Federal Laws and policies prevent employment of people with convictions in many jobs. – 40% of jobs may be affected by legal barriers. Many of these barriers are unwarranted. – E.g. Conviction for drinking alcohol in an unlicensed establishment means life-time bar on certain daycare jobs Laws very inconsistent. – E.g. Former felon can become lawyer, but not security guard at mall.

11. Jobs Likely to be Affected by Criminal Record Restrictions Working with or near children Working with or near vulnerable adults Licensed Professions Security-related fields Transportation-related fields Jobs hired or paid by Government

12. Resources to Find Applicable Rules Michigan Reentry Law Wiki: reentry.mplp.org Training outline Website of agency that regulates industry Unions Defendants’ own employment materials Other Lawyers

16. Reporting Requirements Persons involved in certain jobs may need to report arrests or convictions to current employer or to a licensing agency. Failure to report is often a separate crime and/or automatic grounds for termination from employment. Always check reporting requirements if: – the defendant is employed in long-term care, education/schools services, or daycare; – the defendant has a hazmat license; – you have a reason to believe reporting requirements might apply.

17. Example #1 Dan has worked for two years as a security guard, and supports his family of four. He has been charged with felony breaking and entering. What arguments could you make for why he should only be convicted of a misdemeanor?

18. Example #2 Sharon has been charged with misdemeanor negligent homicide as a result of a driving accident. She has worked her entire life as nurse aid in nursing homes. What do you do?

19. Housing Consequences Any convictions will make it harder to find housing – landlords can refuse to rent. Particularly difficult for people with sex offenses. Certain convictions will result in loss of subsidized housing. Entire family can be evicted, not just offender.

20. Convictions that Impact Subsidized Housing Mandatory eviction and denial of admission – Life-time Sex Offender Registration Offenses – Methamphetamine Production Possible eviction – Drug crimes – Alcohol abuse – Crimes that threaten well-being of other residents (most other crimes)

21. Variation in How Rules Applied Different public housing authorities can have different rules in discretionary areas. Different rules apply to admission and eviction – Criminal history considered at admission. – Once admitted, old conviction probably doesn’t justify eviction, though new conviction might well justify eviction.

22. Impact on Household Members Housing Authority can terminate housing to others based on defendant’s conviction (or criminal activity) if defendant was living with or visiting other residents at time of offense. “Criminal activity” doesn’t necessarily require a conviction to result in eviction.

23. Housing and Sex Offender Registration School Safety Zone: Can’t live or work within 1000 feet of school property Some exceptions: – Offenders under Holmes Youthful Trainee Act who complete probationary period; – Certain young offenders who are living with parents or guardians; – Young adult who was convicted of CSC 4 with person between 13 and 16.

24. Grandfathered Residents 1000 foot residency restriction does not apply to individual who resided in school safety zone prior to January 1, 2006. – People v. Zujko, 282 Mich. App. 520 (2008): individuals residing in Student Safety Zone on 1/1/2006 need not move, even if subsequently convicted, sentenced, and required to register as sex offender. – AG Opinion 7228: Prison is a “residence.” If “residing” in prison on 1/1/2006, but lived in Student Safety Zone prior to incarceration, then not grandfathered.

25. What is a Residence? Critical in cases for failure to register/update address – People v. Dowdy, 2010 Mich. App. LEXIS 214 (Feb. 2, 2010), leave granted (homeless can’t register because have no residence). Critical for determining if violating Student Safety Zone. – Poe v. Granholm (W.D. Mich.): whether homeless registrants can sleep in shelters if shelters are within 1000 feet of a school.

26. Standard Parole Conditions for Sex Offenders Restrictions beyond state law: 1000 feet from daycares, playgrounds, parks, etc. Restrictions on living with children, including own children – May make it impossible for individual to live with spouse or other family members. Similar conditions often imposed on probationers as well.

27. Example #3 Pete, who is 18, had sex with his 15-year-old girlfriend, and is now being charged with third degree criminal sexual conduct for sexual penetration of a person under the age of 16. Pete recently bought a house, which is next to a school. He lives there by himself. This is Pete’s first offense. What do you do?

28. Public Benefits Benefits Can Be Denied Based on: Certain Convictions Incarceration Outstanding Parole/Probation Violation Warrants Lack of ID (common problem after incarceration)

29. Denial of Benefits Based on Convictions Drug Related Felony Convictions: – Lifetime Bar on cash assistance and food stamps for individuals with a drug related felony conviction for conduct after August 22, 1996. See 21 USC §862a. – Does not apply to SSI/SSD or Medicaid – MI has opted out of this ban, but can affect clients if moving to other states.

30. Welfare fraud convictions Welfare fraud and similar convictions can result in disqualification from public benefits for specified periods of time.

31. Denial of Benefits Based on Outstanding Warrants: “Fleeing Felons” and Parole Violators Public assistance applicants subject to national warrant check. If have a warrant for violating a condition of probation OR parole then disqualified from: – TANF (Cash for families) – SSI (cash based on age/disability) – Food Stamps – Subsidized housing Outstanding felony warrants for new offenses should no longer result in benefit cut-offs (Martinez v. Astrue).

32. Clearing Old Probation/Parole Violation Warrants Social Security suspensions have caught up thousands of elderly and very ill people who have old felony warrants. They lose their only means of income, and often have no way to resolve the warrant because too ill or too poor to travel to issuing jurisdiction. Encourage defenders to help us resolve these cases.

33. Example #4 Kathy and her four children live in Indiana, where she survives on TANF (welfare) benefits and food stamps. To make ends meet, Kathy agreed to carry drugs to Michigan, where she was caught and charged with distribution of a controlled substance. What advice do you give to Kathy about whether to accept a deal that involves a felony conviction?

34. Denial of Benefits Based on Inability to Prove Identity Many individuals released from prison or jail do not have ID. – Never had ID. – Didn’t have ID along when arrested, or ID kept as evidence. – ID lost while incarcerated. Without ID, may be unable to get public benefits, housing or work. Sex offenders required to maintain ID.

35. New Michigan ID Website http://michid.org/ Excellent site for people having difficulty getting ID.

36. Public Benefits Practice Tips  Always advise clients with drug-related felony cases of the ban on public benefits, in case they move to another state.  Warn clients they are subject to a warrant check when applying for public assistance.  Try to resolve any open felony, probation, or parole violation warrants as part of the case.  Advise clients to store ID and vital documents in secure place while incarcerated.

37. Child Support – why address before incarceration? $28,000 average arrearage for prisoners No retroactive adjustments after released Up to 65% of wages taken to pay support after released. Can increase risk of losing parental rights Prevent later bench warrants and incarceration

38. Actions to Take Request reduction or cancellation of child support payments ASAP Self-help kits available

39. Example #5 George has been sentenced to a 10 year term. He pays child support for two children, ages 3 and 5, by different mothers. What advice do you give him?

40. Protecting Parental Rights Critical issue is whether parent provides for care and custody of child while parent incarcerated. Termination if child in foster care 15 out of last 22 months unless compelling reason not to terminate

41. Actions to Take Parental Power of Attorney “Temporary Authorization of Kinship Care” Forms on reentry website Good for 6 months at a time – no court required Guardianship Requires court order Guardian must file reports with court

42. Parole Conditions Restricting Family Contact for Sex Offenders Standard condition of parole that cannot have contact with any children, including parolee’s own children. Houle v. Sampson: process for handling individual cases. Contact UM Law Clinic. Always ensure that PSI is accurate, as has huge consequences for what parole/probation conditions are imposed.

43. Example #6 Rhonda has been sentenced to a five year prison term. She is planning to have her daughter live with Rhonda’s mother. The child’s father – to whom Rhonda is not married – is unstable. Child Protective Services previously investigated Rhonda and the father because the father abused the child. What advice do you give Rhonda?

44. Example # 7 The facts are the same as above, except that Rhonda is facing a five month jail sentence. Does your answer change?

45. Family Law Practice Tips  Advise clients to make legally valid arrangements for their children while incarcerated.  Advise incarcerated clients to file for modifications of child support ASAP.  Ensure that PSIs are accurate.

46. Minimizing the Record from the Outset The best record is no record. – Explore disposition without entry of judgment – Preserve possibility of expungement – Avoid sex offender registration where at all possible – Clear out arrests that don’t result in conviction

47. Disposition without entry of judgment of conviction (“sealing record”) Consider at plea /sentence Variety of statutory options – 7411, HYTA, drug court, etc. Usually results in dismissal of case after successful probation Often for 1 st offenses

48. FBI reporting of sealed records Increasingly FBI reports are used for background screening in sensitive employment areas. MSP often does not update FBI when case sealed after completion of probation. Advise all clients with probation dismissals to check their FBI record to ensure case has been removed.

49. Civil Consequences of Sealed Dispositions Certain pleas (even without conviction) can have immigration consequences. Federal occupational exclusions may rely on sealed dispositions (e.g. long-term care)

50. Preserve Possibility of Expungement Who is eligible 1 conviction only – Multiple counts are considered multiple convictions. 5 years from conviction or release, whichever is longer Juveniles must be at least 24 – Unresolved if can expunge both one adult conviction and one juvenile adjudication. Discretionary with the court

51. Some offenses can’t be expunged Offenses punishable by life imprisonment (regardless of actual sentence) CSC 1, CSC 2, CSC 3, assault with intent to commit CSC (for adults) Traffic offenses Non-traffic offenses reportable to SOS may be expunged but SOS still keeps a record. – People v. Droog, 282 Mich. App. 68 (2009)

52. Ensure Record Accuracy Many civil consequences turn on whether a conviction is a felony or misdemeanor. In cases where this may be unclear, e.g. high court misdemeanor or attempt crime, ask the court to note on the judgment that the conviction is a misdemeanor. – This helps to ensure conviction will be reported as a misdemeanor on the client’s record.

53. Sex Offender Considerations Civil consequences of registration so severe that worth accepting much more significant criminal sanctions to avoid registration. – Statutory bars on housing, employment, even ability to watch own kid’s school play. – Given availability of info, extremely difficult to get housing or employment, even where not barred by law.

54. Very Few Options to Remove From Registry Expunged adult conviction does not remove from registry. MCL 28.722(a)(i). Expunged juvenile adjudication does remove from registry. MCL 28.722(a)(i). In juvenile cases try for sentence that allows for petitioning under MCL 28.728c. – Very limited eligibility under MCL 28.728 due to limits on time, age difference, other criminal record, nature of offense Prior HYTA cases: Dipiazza motions or 10-year petitions under MCL 28.728c.

55. Non-Public Sex Offender Registration Juvenile dispositions are listed on sex offender registry after turn 18 if for CSC 1 or CSC 2. Other juvenile sex offender dispositions do not result in public registration. MCL 28.728(3)(a). Try for dispositions that avoid public registration.

56. Example #8: Cliff was arrested after a bar fight. The cops found a gun when he was searched. He has been charged with carrying a concealed weapon and with assault. He does not have a prior criminal record. What do you do?

57. Practice Tips – Keeping Records Clean – If this is first offense, try to preserve the possibility of expungement. Can any other pending charges be dismissed as part of a deal? Do not plead to multiple charges/counts without good reason. – Explore disposition without judgment of conviction. Have clients get copies of FBI and MSP records after probation dismissals or expungement. – Get fingerprints destroyed if case was dismissed. – If disposition is misdemeanor and this isn’t completely clear, ask for a notation on the judgment.

58. Structuring Convictions to Mitigate Civil Consequences If the best conviction is no conviction, the second-best conviction is the one that does the least damage in client’s specific circumstances. Collateral consequences often depend on exact nature of conviction, and you may be able to mitigate or eliminate a consequence by pleading client to slightly different charges. No one-size-fits-all approach. Which consequences are most important will depend on each client’s job, housing, family circumstances, educational goals, etc.

59. Screening Clients for Collateral Consequences Have clients fill out the Client Questionnaire in order to flag potential issues. Review the Questionnaire with your clients. Refer clients with immigration issues to immigration counsel.

60. Using your knowledge to improve outcomes and overcome barriers Learn about consequences, and evaluate possible outcomes in terms of both civil and criminal consequences Use discovery in civil cases; Anticipate and avoid incriminating statements Expose unjust or extreme civil consequences to negotiate better outcomes in criminal matters Educate defendants on steps they can take before incarceration to reduce post-release barriers Refer clients to – and/or consult with - knowledgeable civil counsel

61. Tools for Your Practice Collateral Consequences Client Checklist Michigan Reentry Law Wiki website: reentry.mplp.org Legal Outline State Bar brochures Training Resources Resource People

64. Summary Civil consequences can be as severe, or even more severe, than criminal consequences. The best record is no record. The second-best record is one that does the least damage, given your client’s individual situation.