DISTINGUISHED BRIEF PEOPLE OF THE STATE OF MICHIGAN,

Transcription

1 DISTINGUISHED BRIEF The Distinguished Brief Award is given in recognition of the most scholarly briefs filed before the Michigan Supreme Court, as determined by a panel of eminent jurists. Three briefs are chosen each year and printed in the Thomas M. Cooley Law Review. INTRODUCTION PEOPLE OF THE STATE OF MICHIGAN, v. DAVID MARK COLE, Plaintiff-Appellee, Defendant-Appellant. This amicus brief on behalf of the Criminal Defense Lawyers of Michigan and the American Civil Liberties Union (ACLU) of Michigan argues that defendants accused of first- or second-degree criminal sexual conduct in Michigan must be made aware that pleading guilty will result in mandatory, lifetime electronic monitoring after their release in order for any plea to be valid under Michigan law and the U.S. Constitution. To be lawful, guilty pleas must be knowing and voluntary, which requires that defendants be informed of any punishment that would be a direct consequence of their guilty plea. Lifetime electronic monitoring is a direct consequence of a guilty plea to first- or second-degree criminal sexual conduct because it is mandatory and follows automatically from conviction. Lifetime electronic monitoring is also punishment because, at a minimum, it is demonstrably punitive in its effects on offenders. As the brief documents at length, lifetime electronic monitoring imposes severe physical, financial, and social burdens, and these disabilities and restraints are unrelated to or vastly excessive when compared to any reasonable non-punitive governmental interest.

2 314 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 BIOGRAPHICAL STATEMENT J.J. PRESCOTT is a Professor of Law at the University of Michigan Law School, where he has taught since His research interests include criminal law, sentencing law and reform, employment law, and civil litigation. Much of his work is empirical in focus, and he is particularly interested in how law affects individual behavior i.e., the real world. His recent and ongoing work includes an examination of the effects of sex offender registration and notification laws on the frequency and incidence of sex crimes and an empirical study of the socioeconomic consequences of criminal record expungement in Michigan. Professor Prescott earned his JD, magna cum laude, in 2002 from Harvard Law School, where he was the treasurer and an editor of the Harvard Law Review. After clerking for Judge Merrick B. Garland on the U.S. Court of Appeals for the D.C. Circuit, he went on to earn a Ph.D in Economics from the Massachusetts Institute of Technology in He lives in Northville with his wife Sarah, a trial lawyer, and his two children, Annelise and Alex. MIRIAM J. AUKERMAN joined the ACLU of Michigan in December 2010 as the staff attorney for the newly opened West Michigan Regional Office. In addition to building a robust legal program in West Michigan, Aukerman participates in advocacy activities, such as public speaking, media interviews, and outreach work, to increase understanding of constitutional rights and the ACLU s work. For nearly ten years, Aukerman has been an active member of both the ACLU of Michigan Western Branch Board and its Lawyers Committee. She has served as a cooperating attorney on many important issues, including racial profiling in Grand Rapids and a challenge to a Dearborn ordinance restricting protests that resulted in a significant Sixth Circuit decision on the right to protest. She also led the ACLU s election protection efforts in Grand Rapids in 2004 and Aukerman graduated summa cum laude from both Cornell University and the New York University Law School, where

3 2013] DISTINGUISHED BRIEF 315 she received numerous academic and public-interest awards. She was also a Keasbey Scholar at Oxford University, earning a master s degree with honors in international relations. Following law school, she was selected for a judicial clerkship on the U.S. Court of Appeals for the Second Circuit in New York with Judge Pierre Leval. The daughter of a minister, Aukerman lives with her husband and two children in Grand Rapids. MICHAEL J. STEINBERG has served as the Legal Director of the ACLU of Michigan since 1997 and is responsible for overseeing all litigation taken on by the ACLU throughout the state. He has worked on numerous high-impact, high-profile cases on a wide range of civil-liberties issues including freedom of speech and expression, post-9/11 issues, religious freedom, racial justice, LGBT rights, police misconduct, women s rights, reproductive freedom, voting rights, right to counsel, and prisoner rights. Steinberg earned a B.A. with honors from Wesleyan University in 1983 and is a 1989 cum laude graduate of Wayne State University Law School. Upon graduation, he clerked for then Michigan Court of Appeals Judge Marilyn Kelly (now a Michigan Supreme Court Justice). He then established his own private practice in Ann Arbor where he specialized in civil and criminal appeals and civil-rights litigation. Steinberg is an adjunct professor at Wayne State University Law School, a former high school teacher and coach, a former president of the Ann Arbor Chapter of the National Lawyers Guild and a founding board member of Michigan Peace Action. He has received numerous honors, including being named a public-interest fellow at Harvard Law School. KARY L. MOSS has served as the Executive Director of the ACLU of Michigan since She earned a Masters in International Affairs from Columbia University and a JD from CUNY Law School at Queen s College. Before joining the ACLU of Michigan, she clerked at the United States Court of Appeals for the Second Circuit and then served as staff attorney with the ACLU s Women s Rights Project which was founded by Justice Ruth Bader Ginsburg. Since joining the staff, Moss has spearheaded tremendous

4 316 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3 growth in the organization. In addition to leading two effective capital and operating campaigns, the organization s programs have included many high impact, important civil-rights cases including the country s first challenge to the government s effort to close immigration court hearings to the public, warrantless wiretapping by the National Security Administration, and the first-of-its-kind right to read lawsuit holding the state accountable for dismal literacy scores in a Detroit-area school district. She has served as the Chair of the ACLU s Executive Director Council, representing all state directors in the ACLU and is a member of the Detroit News Editorial Page Advisory Board. JOHN R. MINOCK received his Juris Doctor from the University of Michigan Law School in 1974, lived in Ann Arbor for more than 40 years, and has practiced law as a criminal defense attorney for 36 years. John is the past president of the Criminal Defense Attorneys Association of Michigan and the 2006 Right to Counsel Award winner.

5 2013] DISTINGUISHED BRIEF 317

6 318 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

7 2013] DISTINGUISHED BRIEF 319

8 320 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

9 2013] DISTINGUISHED BRIEF 321

10 322 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

11 2013] DISTINGUISHED BRIEF 323

12 324 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

13 2013] DISTINGUISHED BRIEF 325

14 326 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

15 2013] DISTINGUISHED BRIEF 327

16 328 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

17 2013] DISTINGUISHED BRIEF 329

18 330 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

19 2013] DISTINGUISHED BRIEF 331

20 332 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

21 2013] DISTINGUISHED BRIEF 333

22 334 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

23 2013] DISTINGUISHED BRIEF 335

24 336 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

25 2013] DISTINGUISHED BRIEF 337

26 338 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

27 2013] DISTINGUISHED BRIEF 339

28 340 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

29 2013] DISTINGUISHED BRIEF 341

30 342 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

31 2013] DISTINGUISHED BRIEF 343

32 344 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

33 2013] DISTINGUISHED BRIEF 345

34 346 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

35 2013] DISTINGUISHED BRIEF 347

36 348 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

37 2013] DISTINGUISHED BRIEF 349

38 350 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

39 2013] DISTINGUISHED BRIEF 351

40 352 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

41 2013] DISTINGUISHED BRIEF 353

42 354 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

43 2013] DISTINGUISHED BRIEF 355

44 356 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

45 2013] DISTINGUISHED BRIEF 357

46 358 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

47 2013] DISTINGUISHED BRIEF 359

48 360 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

49 2013] DISTINGUISHED BRIEF 361

50 362 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

51 2013] DISTINGUISHED BRIEF 363

52 364 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

53 2013] DISTINGUISHED BRIEF 365

54 366 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3

55 2013] DISTINGUISHED BRIEF 367

56 368 THOMAS M. COOLEY LAW REVIEW [Vol. 30:3