Transcript USING COLLATERAL CIVIL CONSEQUENCES TO ACHIEVE …

COLLATERAL CIVIL CONSEQUENCES
OF CRIMINAL CONVICTIONS
CAP Training
October 22, 2010
What are Collateral Consequences?
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Immigration
Sex offender registration
Employment
Licensing
Housing
Public Benefits
Student Loans
School expulsion/refusal to
admit to college
Parental Rights Termination
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Child Support
Fees & Fines
Drivers Licenses
Firearms
Jury Service
Voting
Public Office
Civil forfeiture
Limits on parental school
involvement
A.
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I. Why Should You Care?
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.”
B. The Civil Impact May
Be Most Significant Result for Client
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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.
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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.
C. Improved Criminal Dispositions
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Argue civil impact is
disproportionate to criminal conduct
Use severity of civil consequences
to argue for better criminal
outcomes.
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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).
D. Risk Management and
Discovery Opportunities
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Reduce damaging
statements by clients or
witnesses in ancillary
civil actions with fewer
protections.
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Use civil proceedings
as discovery tools;
utilize civil subpoena
powers.
Critical Times to Assess and Mitigate
Consequences
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Investigatory Phase
Plea Negotiations
Sentencing
Before Incarceration
Post Release
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But by then may be too late
because consequences may
be automatically linked to
conviction.
Employment Consequences:
Why consider barriers to employment?
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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
Hire
33%
No Hire
67%
How Do You Know Whether
Employment Will Be Affected?
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Criminal record, particularly felony record, in and of
itself has huge negative impact on employability.
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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.
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Complex patchwork of state and federal restrictions.
Statutory Barriers to Employment
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State and Federal Laws and policies prevent
employment of people with convictions in
many jobs.
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Many of these barriers are unwarranted.
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40% of jobs may be affected by legal barriers.
E.g. Conviction for drinking alcohol in an
unlicensed establishment means life-time bar
on certain daycare jobs
Laws very inconsistent.
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E.g. Former felon can become lawyer, but
not security guard at mall.
Jobs Likely to be Affected by Criminal
Record Restrictions
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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
Resources to Find Applicable Rules
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Michigan Reentry Law Wiki: reentry.mplp.org
Training outline
Website of agency that regulates industry
Unions
Defendants’ own employment materials
Other Lawyers
Reporting Requirements
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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:
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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.
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?
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?
Housing Consequences
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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.
Convictions that Impact Subsidized
Housing
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Mandatory eviction and denial of admission
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Life-time Sex Offender Registration Offenses
Methamphetamine Production
Possible eviction
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Drug crimes
Alcohol abuse
Crimes that threaten well-being of other residents
(most other crimes)
Variation in How Rules Applied
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Different public housing authorities can have
different rules in discretionary areas.
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Different rules apply to admission and
eviction
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Criminal history considered at admission.
Once admitted, old conviction probably doesn’t
justify eviction, though new conviction might well
justify eviction.
Impact on Household Members
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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.
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“Criminal activity” doesn’t necessarily require
a conviction to result in eviction.
Housing and Sex Offender Registration
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School Safety Zone: Can’t live or work within
1000 feet of school property
Some exceptions:
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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.
Grandfathered Residents
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1000 foot residency restriction does not apply to
individual who resided in school safety zone prior to
January 1, 2006.
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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.
What is a Residence?
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Critical in cases for failure to register/update address
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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.
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Poe v. Granholm (W.D. Mich.): whether homeless
registrants can sleep in shelters if shelters are within 1000
feet of a school.
Standard Parole Conditions for Sex
Offenders
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Restrictions beyond state law: 1000 feet
from daycares, playgrounds, parks, etc.
Restrictions on living with children, including
own children
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May make it impossible for individual to live with
spouse or other family members.
Similar conditions often imposed on
probationers as well.
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?
Public Benefits
Benefits Can Be Denied
Based on:
 Certain Convictions
 Incarceration
 Outstanding
Parole/Probation Violation
Warrants
 Lack of ID (common
problem after incarceration)
Denial of Benefits Based on
Convictions
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Drug Related Felony Convictions:
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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.
Welfare fraud convictions
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Welfare fraud and similar convictions can
result in disqualification from public benefits
for specified periods of time.
Denial of Benefits Based on
Outstanding Warrants: “Fleeing
Felons” and Parole Violators
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Public assistance applicants subject to national warrant
check.
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If have a warrant for violating a condition of probation OR
parole then disqualified from:
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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).
Clearing Old Probation/Parole Violation
Warrants
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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.
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?
Denial of Benefits Based on Inability to
Prove Identity
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Many individuals released from prison or jail do not
have ID.
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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.
New Michigan ID Website
http://michid.org/
Excellent site for people
having difficulty getting ID.
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.
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Warn clients they are subject to a warrant check when applying
for public assistance.
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Try to resolve any open felony, probation, or parole violation
warrants as part of the case.
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Advise clients to store ID and vital documents in secure place
while incarcerated.
Child Support – why address before
incarceration?
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$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
Actions to Take
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Request reduction or
cancellation of child
support payments
ASAP
Self-help kits available
Example #5
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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?
Protecting Parental Rights
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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
Actions to Take
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Parental Power of Attorney
“Temporary Authorization of Kinship Care”
Forms on reentry website
Good for 6 months at a time – no court required
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Guardianship
Requires court order
Guardian must file reports with court
Parole Conditions Restricting Family
Contact for Sex Offenders
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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.
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?
Example # 7
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The facts are the same as above, except that
Rhonda is facing a five month jail sentence.
Does your answer change?
Family Law Practice Tips
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Advise clients to make legally valid
arrangements for their children while
incarcerated.
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Advise incarcerated clients to file for
modifications of child support ASAP.
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Ensure that PSIs are accurate.
Minimizing the Record
from the Outset
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The best record is no
record.
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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
Disposition without entry of judgment
of conviction (“sealing record”)
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Consider at plea /sentence
Variety of statutory options
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7411, HYTA, drug court, etc.
Usually results in dismissal of case after
successful probation
Often for 1st offenses
FBI reporting of sealed records
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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.
Civil Consequences of Sealed
Dispositions
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Certain pleas (even without conviction) can
have immigration consequences.
Federal occupational exclusions may rely on
sealed dispositions (e.g. long-term care)
Preserve Possibility of Expungement
Who is eligible
 1 conviction only
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5 years from conviction or release, whichever is
longer
Juveniles must be at least 24
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Multiple counts are considered multiple convictions.
Unresolved if can expunge both one adult conviction and
one juvenile adjudication.
Discretionary with the court
Some offenses can’t be expunged
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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.
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People v . Droog, 282 Mich. App. 68 (2009)
Ensure Record Accuracy
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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.
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This helps to ensure conviction will be reported as
a misdemeanor on the client’s record.
Sex Offender Considerations
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Civil consequences of registration so severe
that worth accepting much more significant
criminal sanctions to avoid registration.
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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.
Very Few Options to Remove From
Registry
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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.
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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.
Non-Public Sex Offender Registration
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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.
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?
Practice Tips –
Keeping Records Clean
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If this is first offense, try to preserve the possibility of
expungement.
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Can any other pending charges be dismissed as part of a deal?
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Do not plead to multiple charges/counts without good reason.
Explore disposition without judgment of conviction.
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Have clients get copies of FBI and MSP records after probation
dismissals or expungement.
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Get fingerprints destroyed if case was dismissed.
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If disposition is misdemeanor and this isn’t completely clear,
ask for a notation on the judgment.
Structuring Convictions to Mitigate
Civil Consequences
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If the best conviction is no conviction, the second-best
conviction is the one that does the least damage in client’s
specific circumstances.
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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.
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No one-size-fits-all approach. Which consequences are most
important will depend on each client’s job, housing, family
circumstances, educational goals, etc.
Screening Clients for Collateral
Consequences
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Have clients fill out the Client Questionnaire
in order to flag potential issues.
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Review the Questionnaire with your clients.
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Refer clients with immigration issues to
immigration counsel.
Using your knowledge to improve
outcomes and overcome barriers
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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
Tools for Your Practice
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Collateral Consequences Client
Checklist
Michigan Reentry Law Wiki
website: reentry.mplp.org
Legal Outline
State Bar brochures
Training Resources
Resource People
Summary
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Civil consequences can be as severe, or
even more severe, than criminal
consequences.
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The best record is no record.
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The second-best record is one that does the
least damage, given your client’s individual
situation.