D R A F T

FOR DISCUSSION ONLY

UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

For March 17-19, 2006 Drafting Committee Meeting

WITH PREFATORY NOTE AND COMMENTS

Copyright ©2006

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

February 13, 2006

DRAFTING COMMITTEE ON UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Uniform Collateral Sanctions and Disqualifications Act consists of the following individuals:

RICHARD T. CASSIDY, 100 Main St., P.O. Box 1124, Burlington, VT 05402, Chair

ANN WALSH BRADLEY, P.O. Box 1688, Madison, WI 53701-1688

JOHN M. CARY, 1201 Third Ave., #2812, Seattle, WA 98101

GREG J. CURTIS, P.O. Box 2084, Sandy, UT 84091

JESSICA FRENCH, Division of Legislative Services, 910 Capitol St., 2nd Floor, General Assembly Building, Richmond, VA 23219

ROGER C. HENDERSON, University of Arizona-James E. Rogers College of Law, 1201 Speedway, P.O. Box 210176, Tucson, AZ 85721-0176, Enactment Plan Coordinator

H. LANE KNEEDLER, 901 E. Byrd St., Suite 1700, Richmond, VA 23219

HARRY D. LEINENWEBER, U.S. District Court, 219 S. Dearborn St., Suite 1946, Chicago, IL 60604

MARIAN P. OPALA, Supreme Court, State Capitol, Room 238, Oklahoma City, OK 73105

RAYMOND G. SANCHEZ, P.O. Box 1966, Albuquerque, NM 87103

MICHELE L. TIMMONS, Office of the Revisor of Statutes, 700 State Office Bldg., 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155

GABRIEL J. CHIN, University of Arizona-James E. Rogers College of Law, 1201 Speedway, P.O. Box 210176, Tucson, AZ 85721, Reporter

EX OFFICIO

HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President

JACK DAVIES, 687 Woodridge Dr., Mendota Heights, MN 55118, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

ROBERT M.A. JOHNSON, 2100 Third Ave., Anoka, MN 55303, American Bar Association Advisor

THOMAS EARL PATTON, 1747 Pennsylvania Ave. NW, Suite 300, Washington, DC 20006, American Bar Association Section Advisor

CHARLES M. RUCHELMAN, 1775 Pennsylvania Ave. NW, Washington, DC 20006-4605, American Bar Association Section Advisor

EXECUTIVE DIRECTOR

WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, Illinois 60611

312/915-0195

www.nccusl.org

UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT

TABLE OF CONTENTS

Prefatory Note

SECTION 1. SHORT TITLE

SECTION 2. DEFINITIONS

SECTION 3. COLLECTION OF COLLATERAL SANCTIONS AND

            DISQUALIFICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SECTION 4. ADVISEMENT UPON RELEASE OR AT SENTENCING

SECTION 5. LIMITATION OF COLLATERAL SANCTIONS AND DISQUALIFICATION RELATED TO EMPLOYMENT, EDUCATION, AND LICENSING TO PREVENT RECIDIVISM AND PROMOTE PUBLIC SAFETY

SECTION 6. CERTIFICATES OF REHABILITATION FOR FORMER OFFENDERS

SECTION 7. ADVISEMENT AT GUILTY PLEA

UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT

Prefatory Note

            Both the criminal justice system and society as a whole are faced with managing the growing proportion of the free population that has been convicted of a state or federal criminal offense. In a trend showing little sign of abating, the U.S. prison population has increased dramatically since the early 1970s. Prison growth is large in absolute and relative terms; in 1974, 1.8 million people had served time in prison, representing 1.3% of the adult population. In 2001, 5.6 million people, 2.7% of the adult population, had served time. The Department of Justice estimates that if the 2001 imprisonment rate remains unchanged, 6.6% of Americans born in 2001 would serve prison time during their lives --this may be an underestimate given that the incarceration rate has increased every year since 2001.

            In addition to those serving or who have served prison time, an even larger proportion of the population has been convicted of a criminal offense without going to prison. Over 4 million adults were on probation on December 31, 2003, almost twice as many as the combined number on parole, in jail or in prison.

            The growth of the convicted population means that there are literally millions of people being released from incarceration, probation and parole supervision every year. Of course, they must successfully reenter society or be at risk for recidivism. Although no one supports “coddling criminals,” society has a strong interest in preventing recidivism. An individual who could have successfully reentered society but for avoidable cause reoffends generates the financial and human costs of the new crime, expenditure of law enforcement, judicial and corrections resources, and the loss of the productive work that the offender could have contributed to the economy.

            As the need for facilitating reentry becomes more pressing, several developments have made it more difficult. First, a major challenge for many people with criminal records is the increasingly burdensome legal effect of those records. Apart from impairment of self-esteem and informal social stigma, a criminal conviction negatively affects an individual’s legal status. For many years, a person convicted of, say, a drug felony, lost his right to vote for a period of time or for life, could not possess a firearm, and was barred from service in the military and on juries, state and federal, civil and criminal. If a non-citizen, the convicted person could be deported. These disabilities have been called “collateral consequences” “civil disabilities” and “collateral sanctions.” The term “collateral sanction” is used here to mean a legal disability that occurs by operation of law because of a conviction but is not part of the sentence for the crime. It is “collateral” because it is not part of the direct sentence. It is a “sanction” because it applies because and only because of conviction of a criminal offense.

            In recent years, collateral sanctions have been increasing. To identify just some of those applicable to drug felons under federal law, 1987 legislation made drug offenders ineligible for certain federal health care benefits; a 1991 law required states to revoke some drug offender’s driver’s licenses or lose federal funding, in 1993, Congress made drug offenders ineligible to participate in the National and Community Service Trust Program. In 1996, Congress provided that persons convicted of drug offenses would automatically be ineligible for certain federal benefits; a year later, Congress rendered them ineligible for the Hope Scholarship Tax Credit. In 1998, persons convicted of drug crimes were made ineligible for federal educational aid and for residence in public housing. In addition, 1988 legislation authorized state and federal sentencing judges to take away eligibility for federal public benefits.

            Like Congress, state legislatures have also been attracted to regulating convicted persons. Studies of disabilities imposed by state law or regulation done by law students in Arizona, Maryland and Ohio show literally hundreds of collateral sanctions on the books in those states. These laws limit the ability of convicted persons to work in particular fields, to obtain state licenses or permits, to obtain public benefits such as housing or educational aid, and to participate in civic life.

            A second major development is the availability to the all arms of government and the general public, via Internet, of aggregations of public record information, including criminal convictions, about all Americans. Twenty years ago, an applicant might not have been asked for her criminal record when renting an apartment or applying for a job, and it would have been difficult for even an enterprising administrator to find, say, a 15 year old, out-of-state, marijuana offense. Now, gathering this kind of information is cheap, easy and common.

            The legal system has not successfully managed the proliferation of collateral sanctions in several respects. One problem is that collateral sanctions are administered largely outside of the criminal justice system. Court decisions have not treated them as criminal punishment, but mere civil regulation. The most important consequence of this principle is in the context of guilty pleas. In a series of cases, the Supreme Court held that a guilty plea is invalid unless “knowing, voluntary and intelligent.” Courts have held that while a judge taking a guilty plea must advise of the “direct” consequences—imprisonment and fine—defendants need not be told by the court or their counsel about collateral sanctions. For example, the Constitution does not require that a defendant pleading guilty to a drug felony with an agreed sentence of probation be told that, even though she may walk out of court that very day, for practical purposes, her life may be over: Military service, higher education, living in public housing, even driving a car, may be out of the question. Inevitably, offenders, most not legally trained, are surprised when they discover statutory obstacles they were never told about. The major exception to the exclusion of collateral sanctions from the guilty plea process is in the area of deportation. About half of American jurisdictions provide by rule, statute or court decision that defendants must be advised of the possibility of deportation when pleading guilty.

            The criminal justice system must pay attention to collateral sanctions. If the number of statutes triggered is a reliable indicator, collateral sanctions in many instances are what is really at stake, the real point of achieving a conviction. In state courts in 2002, 59% of those convicted of felonies were not sentenced to prison; 31% received probation and 28% jail terms. In a high percentage of cases, the real work of the legal system is done not by fine or imprisonment, but by changing the legal status of convicted persons. The legal effects the legislature considers important are in the form of collateral sanctions imposed by dozens of statutes. Yet the defendant as well as the court, prosecutors and defense lawyers involved need know nothing about them. As a recent resolution of the National District Attorney’s Association recognizes, “the lack of employment, housing, transportation, medical services and education for ex-offenders creates barriers to successful reintegration and must be addressed as part of the reentry discussion.”

            This Act deals with several aspects of the creation and imposition of collateral sanctions. The provisions are largely procedural, and designed to rationalize and clarify policies and provisions which are already widely accepted by the states.

            Section 3 proposes that collateral sanctions and disqualifications contained in state statutes or regulations be collected in individual titles of the state code and state administrative code. The titles will be known as Collateral Sanctions.

            Sections 4 and 7 propose to make the existence of collateral sanctions known to defendants at important moments: When deciding whether to plead guilty, so they can make an informed decision (Section 7), and when leaving the custody of the criminal justice system, so they can conform their conduct to the law (Section 4). Given that collateral sanctions and disqualifications will have been codified, it will not be difficult to make this information available to offenders.

            Section 5 limits the collateral sanctions and disqualifications applicable to employment. It is a modified version of Section 4-1005 of the Model Sentencing and Correction Act which has been widely adopted in the states.

            Section 6 works in conjunction with Section 5, creating a Certificate of Rehabilitation for persons convicted of crimes who can demonstrate law-abiding behavior consistent with successful reentry and desistence from crime. The Certificate of Rehabilitation would give potential public and private employers, landlords and licensing authorities concrete and objective information about an individual under consideration for an opportunity. It could facilitate the reintegration of former offenders whose behavior demonstrates that they are making efforts to conform their conduct to the law.

            Some of the issues have been anticipated by the ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2003), and the solutions they propose will be mentioned.              

UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT

            SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Collateral Sanctions and Disqualification Act.

            SECTION 2. DEFINITIONS. In this [act]:

                        (1) “Collateral sanction” means a legal penalty, disability, or disadvantage, however denominated, that is imposed on a person automatically upon the person’s conviction for a felony, misdemeanor, or other offense, even if it is not included in the sentence. The term “collateral sanction” does not include terms of imprisonment, probation, parole, supervised release, sex offender registration, fines, assessments, or the costs of prosecution imposed by a judge when sentencing a criminal defendant.

                        (2) “Disqualification” means a penalty, disability, or disadvantage, however denominated, that a civil court, administrative agency, or official is authorized, but not required to impose on a person convicted of an offense on grounds related to the person’s conviction.

                        (3) “Revisor” means [the official responsible for compiling the official state code and the official state administrative code].

                        (4) “State Code” means [the official compilation of statutes of general applicability].

                        (5) “State Administrative Code” means [the official compilation of state administrative regulations].

Comment

            The definitions in paragraphs (1) and (2) are taken directly from the ABA Standards. They are intended to exclude from the definition of collateral sanction or disqualification direct criminal punishment, such as fine, imprisonment, probation, parole, supervised release, or sex offender registration imposed at sentencing, and the incidents and conditions of those direct punishments. They are also intended to exclude private conduct, such as the hiring decisions of private employers. Covered actions generally include such things as denial of government employment and elective or appointive office, ineligibility for government licenses, permits, or contracts, disqualification from public benefits, public education, public services, or participation in public programs, and elimination or impairment of civil rights, such as voting, or serving on juries.

            Whether one of these disabilities is a “collateral sanction” or a “disqualification” depends on how it is applied. If a medical licensing board by law, regulation or policy “must” deny a license to an applicant with a felony conviction, then it is a collateral sanction, because the effect is automatic. If a medical licensing board “may” deny a license to those with felony convictions, then the regulation or policy is a “disqualification.” However, if a criminal court at sentencing takes away a medical license as punishment, the action is neither a collateral sanction nor a disqualification. Even if they are enforced by criminal sanctions, restrictions which are not part of the sentence and apply only to convicted persons constitute collateral sanctions.

            SECTION 3. COLLECTION OF COLLATERAL SANCTIONS AND DISQUALIFICATIONS.

                        (a) Within [six months] after the effective date of this [act], the Revisor shall:                                     (1) prepare drafts of new titles of the State Code and State Administrative Code to be called Collateral Sanctions;

                                    (2) identify every statute or regulation then in force imposing collateral sanctions or disqualifications on offenders; remove them from their location in the State Codes and transfer them to the title Collateral Sanctions;

                                    (3) organize the provisions of the title Collateral Sanctions in an appropriate manner; and

                                    (4) prepare a report describing any technical amendments to any title of the State Codes necessary or appropriate to make the codes clear and understandable, without changing its current meaning, including any necessary cross-references from various titles of the codes to relevant provisions of the title Collateral Sanctions.

                        (b) The titles described in subsection (a)(2) shall not include provisions concerning:

                                    (1) sentencing, including imprisonment, jail, fines, financial assessments, restitution or forfeiture imposed as part of sentencing, probation, parole, or supervised release;

                                    (2) custody or administration of persons committed to the [Department of Corrections];

                                    (3) registration requirements imposed on convicted sex offenders by the court at time of sentence;

                                    (4) civil commitment of individuals based on mental illness; and

                                    (5) victim’s rights that do not directly affect defendants.

                        (c) Unless otherwise directed by statute, after enactment of the titles Collateral Sanctions of the state codes, the revisor shall codify any subsequently adopted or enacted regulation and any statute imposing collateral sanctions or disqualifications on offenders in the appropriate location of the relevant code.

                        (d) The Revisor shall make available in a single document or volume, the full text of:

                                    (1) the title Collateral Sanctions from the [State Code];

                                    (2) the title Collateral Sanctions from the [State Administrative Code];

                                    (3) all provisions of the [insert name of enacting state] Constitution imposing collateral sanctions or disqualifications on offenders; and

                                    (4) all provisions of state law offering relief from collateral sanctions or disqualification.

                        (e) The document in subsection (d) shall be:

                                    (1) called the [State] Compendium of Collateral Sanctions and Provisions for Relief;

                                    (2) in addition to other methods of distribution, made available without charge on the Internet;

                                    (3) published within four months after adoption of the title Collateral Sanctions in the [State Code] or [State Administrative Code], whichever is earlier; and

                                    (4) updated at least annually.

Comment

            In a very real sense, having the status of “felon” is like being a regulated industry. In effect, each state already has a title of its code called Collateral Sanctions, regulating the legal status of this group in scores or hundreds of ways. But instead of publishing these laws together in volume “C” of the code, the statutes have been divided up and scattered. The sanctions have proliferated unsystematically, with a prohibition on felons obtaining one kind of license popping up in one corner of a state’s code, a prohibition of felons obtaining some other kind of government employment appearing in an agency’s regulations.

            While some disabilities may be well-known, such as felon disenfranchisement and the felon firearms prohibition, in most jurisdictions no judge, prosecutor, defense attorney, legislator or bureaucrat could identify all of the statutes that would be triggered by violation of the various offenses in the state’s criminal code. Although the information would be useful to many people, including judges, prosecutors, defense lawyers and those supervising offenders, as well as legislators and other policymakers, it would be extremely costly for any of them to develop the information on their own. The dispersion of these laws and regulations defeats the purpose of having published codes in the first place.

            This provision proposes to move all of the statutes and regulations imposing collateral sanctions and disqualifications to single titles or chapters of the state’s code and administrative code. No substantive change in the meaning of the laws is intended. Collecting collateral sanctions from a state’s code and administrative regulations would make the formal written law knowable to those who use and will be affected by it.

            Section 3(a) proposes that Revisors of Statutes (or whatever they are called under state law) will be directed to create new titles of the code and administrative code, and prepare reports describing the technical changes necessary to make the new title and the existing titles coherent. For example, if a provision prohibiting people with certain convictions from holding insurance brokerage licenses is moved from the “Insurance” title to the new title, it may be helpful to have a reference in “Insurance” to the relevant provision of “Collateral Sanctions.”

            These collections should be enacted as positive law. This would assist in ensuring that the compilation remains current and complete; if published unofficially, they would quickly go out of date. Because official codification would ultimately require an act of the legislature, codification would give legislators an opportunity to examine the state’s collateral sanctions as a collection. At the moment, it is virtually impossible for policymakers and the public to make informed judgments about whether collateral sanctions are overabundant, just right, or insufficient. The ABA Standards recommended codification. See ABA Criminal Justice Standard 19-2.1.

            Section 3(c) is designed to ensure that new statutes and regulations containing collateral sanctions and disqualifications continue to be placed in the new codes. Of course, a legislature cannot bind future legislatures, but in the absence of contrary legislative direction, new provisions should be placed in the titles Collateral Sanctions.

            Once the new titles are created, they should be made available widely; this is the goal of Section 3(d). For each state, the title from the codes and administrative code will present only part of the picture: also relevant are sanctions imposed by the state Constitution, and any provisions available for relief. These four categories of information largely cover the area, and for the benefit of those who do not have ready access to a full set of the state code and administrative regulations, should be made available as a body. Certainly the compendium should be viewable and downloadable on the Internet without charge, and if feasible distributed as a hardcopy booklet.

            SECTION 4. ADVISEMENT UPON RELEASE OR AT SENTENCING. Within 30 days before a person convicted of a crime is released from prison or jail or, if the person is not sentenced to prison or jail, at the time of sentencing, the officer or agency releasing or sentencing the offender shall provide written notice to the offender that collateral sanctions and disqualifications may apply to the offender because of the offender’s conviction. The notice must include a copy of, or information on how to obtain, the [insert name of state] Compendium of Collateral Sanctions and Provisions for Relief referred to in Section 3(d).

Comment

            Section 7 of this Act contemplates that persons pleading guilty will get notice of collateral sanctions at the time of sentencing. Defendants convicted after trial will not have had Section 7 notice. In addition, many defendants who did plead guilty will have received notice months or years before release from custody; many will probably have no recollection of what they were told. Persons in prison, of course, are subject to strict rules which are well known so there would generally be little value in informing prisoners about the largely theoretical additional level of regulation. However, once offenders are no longer in the physical custody of the criminal justice system, they should be informed that their conduct and status is subject to special restriction. The point is not fairness to the defendant in making the decision how to plead; the conviction by this stage is a fact. Rather, formal advisement promotes enforcement of the law. If, for example, persons convicted of felonies do not know they are prohibited from possessing firearms, they may violate the law out of ignorance when they would have complied with the law had they known. In Lambert v. California, the Court found a due process violation in convicting a felon of violation of a registration provision of which she had no knowledge or reason to know.

            This section also requires notice of provisions of law providing for relief from collateral sanctions. To the extent that states provide for relief, they have concluded that it is fair to the individual offender and beneficial to society to let at least some former offenders pay their debt to society and move on. Notification to all offenders will facilitate the participation of deserving but legally unsophisticated offenders.

            The notice contemplated by this section is modest. There is no right to counsel upon being discharged from prison, probation or parole. The note could be a line printed on a form ordinarily issued in the course of processing an individual, stating:

You should be aware that a number of legal restrictions apply to persons convicted of criminal offenses, including restrictions on their ability to possess firearms. The list of restrictions imposed by the law of this state, and the available legal procedures for getting them removed, is available on the internet at http://www.doc.gov/collateralsanctions.

            SECTION 5. LIMITATION OF COLLATERAL SANCTIONS AND DISQUALIFICATION RELATED TO EMPLOYMENT, EDUCATION, AND LICENSING TO PREVENT RECIDIVISM AND PROMOTE PUBLIC SAFETY.

                        (a) This section applies only to acts by the state, its instrumentalities including municipalities, subdivisions, boards, agencies, commissions and their employees, and government contractors made subject to this provision by contract, statute or ordinance, which are directed at individuals who have been convicted of an offense and have completed, or been paroled or otherwise released from, any term of incarceration imposed as part of the sentence.

                        (b) Notwithstanding any other provision of law, no existing or hereinafter enacted regulation, ordinance, or policy may impose a collateral sanction unless specifically authorized by statute. Neither a general grant of authority to make regulations or ordinances, nor a grant of authority to establish good moral character, admission, or hiring standards shall constitute specific authorization, but they may constitute authority to take the facts underlying convictions into account on a case by case basis in accordance with subsection (f). Any regulation, ordinance, or policy imposing collateral sanctions without specific authorization must be construed to impose a discretionary disqualification to be evaluated pursuant to subsection (f).

                        (c) Notwithstanding any other provision of law, the state, including a state educational institution, solely because of a conviction, may not:

                                    (1) refuse to hire, or otherwise to discriminate against a person with respect to the compensation, terms, conditions, or privileges of his employment;

                                    (2) refuse to admit, or otherwise discriminate against a person with regard to an educational program; or

                                    (3) suspend, revoke or refuse to issue or renew a license, permit, or certificate necessary to practice or engage in an occupation, profession, trade or business.

                        (d) For purposes of any law of this state imposing a collateral sanction, a conviction shall not include a conviction:

                                    (1) that has been the subject of a pardon;

                                    (2) that has been finally reversed, vacated, expunged, sealed, or otherwise set aside on appeal or in post-conviction proceedings;

                                    (3) if the defendant has been determined by a court or other tribunal of competent jurisdiction established by law to have been innocent of the offense upon which the conviction was based; or

(4) that has been the subject of a certificate of rehabilitation.

                        (e) Subsections (c) and (d)(4) are not applicable to [police departments, sheriff’s departments, the state police, the department of corrections, and other law enforcement agencies].

                        (f) The state may disqualify a person from employment, education, or licensing if the decisionmaker determines, based on the relevant facts and circumstances, including any relevant facts and circumstances of the offense, that the person is presently unfit. In determining whether the prior conviction renders the person presently unfit for the opportunity at issue, the following factors must be considered:

                                    (1) the policy of this state that former offenders should work, in order to promote public safety, reduce recidivism, and encourage civic and personal responsibility, including the obligation to support themselves and their families;

                                    (2) the facts and circumstances underlying the crime and their relation, if any, to the duties or functions of the occupation, profession, or educational endeavor;

                                    (3) any increased risk to the safety or welfare of individuals or the public if the opportunity is granted, including whether it will provides an opportunity for the commission of similar offenses;

                                    (4) the person’s rehabilitation and conduct since the offense, including whether the person has committed other serious offenses since conviction;

                                    (5) the age of the person when the offense was committed;

                                    (6) the time elapsed since commission of the offense and release; and

                                    (7) whether persons other than the applicant who have engaged in the prohibited conduct underlying the conviction, whether or not convicted, have been or would be disqualified.

                        (g) If conviction of a crime is used as a basis for rejection of an applicant for employment or an educational program or a license, permit, or certificate, the rejection must be in writing and set forth the evidence relied on and the reason for the rejection. A copy of the rejection must be provided to the applicant.

Comment

            The principle that at least some licenses and employment opportunities should not be arbitrarily denied to people with criminal convictions is well established in state codes. As Margaret Love’s research shows, more than 30 states have statutory restrictions on collateral sanctions and disqualifications imposed by state actors. Many of these statutes seem to be based on the Model Sentencing and Corrections Act. These restrictions fall into four categories:

            Hawaii, New York, Pennsylvania and Wisconsin regulate consideration of a conviction in public and private employment and occupational licensure.

            Arizona, California, Colorado, Connecticut, Florida, Kentucky, Louisiana, Minnesota, Missouri, New Jersey, New Mexico, and Washington prohibit disqualification from public employment and occupational licensure solely on grounds of conviction, but do not regulate private employment. Kansas prohibits disqualification from public and private employment but does not regulate occupational licensing.

            Arkansas, Delaware, Indiana, Maine, Michigan, Montana, North Dakota, Oregon, South Carolina Texas and Virginia regulate occupational licensing but not employment.

            Illinois Massachusetts, Ohio, Oklahoma, and West Virginia bar consideration of a conviction only when rights have otherwise been restored or a conviction vacated or expunged.

            Although they vary in specifics, most statutes provide that a conviction shall not be an absolute bar. However, almost all also permit the conviction or the facts underlying it to be weighed by the decisionmaker on a case by case basis, depending on whether it is “directly” or “substantially” related to the employment or license at stake.

            The “substantial” or “direct” relation test is deep in the law. Of the minority of states without general laws, many nevertheless apply the test in the context of at least one licensing or regulatory regime. At least 10 states use the test alone, at least 7 others provide that a felon or a crime substantially related to the license or occupation is disqualifying. Accordingly, the states are virtually unanimous in holding that in some instances, criminal convictions should be considered not as a broad category, but based on their specific facts and circumstances, as they relate to the license, privilege or employment at issue. Collateral sanctions are meant to protect public welfare and safety, not inflict arbitrary and needless harms. Accordingly, as reflected by the laws already on the books, most states agree that it is important whether a conviction “directly relates” to a fitness to engage in a particular occupation or to obtain a particular license. Other informed observers agree; for example, the National District Attorneys Association, while supporting collateral sanctions necessary to protect the public, states that “[r]elief from some collateral sanctions may be appropriate if they do not relate to the conduct involved in the offense of conviction.”

            However, it must be acknowledged that even in states with broad protective legislation, the principle is honored, to some extent, in the breach. Many statues and regulations can be identified, even in these states, which conflict with the non-discrimination provisions by imposing absolute bars even in the absence of a general or fact-specific determination that the offense is “directly related” to the sanction.

            Section 5 is based on the Model Sentencing and Corrections Act, § 4-1005. However, the provision in this draft does not identify a list of prohibited collateral sanctions, as do the Model Sentencing and Corrections Act and the ABA Standards. The Model Sentencing and Corrections Act, § 4-1001(b) provides that a convicted person “retains all rights, political, personal, civil and otherwise”, including, among others it lists, the right to vote. The ABA Standards has a list of sanctions which should never be imposed under any circumstances, such as “deprivation of the right to vote, except during actual confinement.” (ABA Criminal Justice Standard 19-2.6(a)).

            Section 5(a) differs from the original by limiting its coverage to state actors, excluding private employers. Regulation of public employment and licensing is less controversial than would be reaching into the decisions of private businesses. In addition, public employment and licensing are often done with the public interest in mind (for example, in the context of veteran’s preferences, or reserved opportunities for the disabled). If any category of employer is going to take a chance by helping ex-offenders, it is going to be the public sector.

            However, Section 5(a) contemplates that private corporations performing government functions or services might, by contract or statute, be made subject to these restrictions. It is far less intrusive to ask private companies who choose to do business with the state to comply with a policy like this; if a private company finds it objectionable, they may forego the business. Further, even if this is not a point upon which uniformity is likely, this section is not meant to discourage states from deciding on their own that private employers as a group should be covered; some now do and there is no reason they should not continue if it works for them.

            A statute like this represents a policy direction, which a legislature might wish to make permanent. Yet, short of amending a state constitution or the U.S. Constitution, a given legislature cannot absolutely bind future legislatures. Thus, the approach of the ABA Criminal Justice Standards, essentially to ban collateral sanctions in most circumstances, cannot be effectively accomplished through a mere statute—although at any given moment a legislature might accept it, a future legislature is free to go in a different direction.

            Nevertheless, a state legislature can enact legislation constraining and channeling the creation and imposition of collateral sanctions. Section 5(b) represents one possible solution. This provision is designed to restrict creation of absolute, blanket collateral sanctions to the legislature. Individual agencies, municipalities and boards may not be equipped or inclined to consider large policy questions when drafting ordinances and regulations. Accordingly, in order to, say, simplify their own decisionmaking, or because they did not think deeply about the issue, a board might impose absolute bans on some or all persons with criminal convictions under circumstances when the legislature as a whole would find a categorical policy unwarranted. The idea of Section 5(b) is to require that such determinations be made by the legislature itself, which considers the welfare of the state as a whole in addition to the concerns of the licensed occupation or profession, or of the particular locality.

            Section 5(c) establishes the general principle that blanket collateral sanctions will not be created with respect to employment, admission to educational institutions and licensing. It applies both to formal and informal policies, and individual decisions. This provision is similar to the MSCA in that in effect it contemplates that there will be no categorical, absolute collateral sanctions in the employment and licensing context. Everything, it appears, will be dealt with on a case-by-case basis. However, when adopted by a state, inevitably there will be at least a handful of exceptions; persons with recent armed robbery convictions, for example, will not be permitted to have pistol permits; pedophiles will not receive licenses to operate day care centers. Nevertheless, it should serve as a reminder of the principle that blanket collateral sanctions should be sharply limited to the situations where they are genuinely necessary.

            Section 5(d) regulates the application of collateral sanctions by defining conviction. It excludes pardoned convictions (1), convictions which have been reversed or otherwise set aside (2), convictions which, even if not reversed or set aside were found to have been the result of an miscarriage of justice by a court or government agency of competent jurisdiction (3). Section 5(d)(4) provides that a conviction covered by a Certificate of Rehabilitation issued pursuant to Section 6 shall not count as a conviction.  

            Section 5(e) differs from the Model Sentencing and Corrections Act by allowing law enforcement employers to bar persons based on conviction, rather than on a case by case analysis. Arizona, Colorado, Florida, Hawaii, Louisiana, New Mexico and New York specifically exclude law enforcement from the coverage of their statutes, and undoubtedly many others, not mentioning it specifically, do so in practice. Another collateral sanction which will undoubtedly be part of state law in the future is limitation of the ability of sex offenders to work in schools, hospitals and with the elderly.

            Section 5(f) describes the factors relevant to a case by case analysis of a conviction. Eleven states have as positive law the policy set forth in (f)(1), sometimes as a preamble to their statute, sometimes as a licensing factor, as here.

            Section 5(d) uses the passage of time as a factor. Some jurisdictions have a term of years, after which, if the person has not been convicted of another crime, rehabilitation is presumed.

            Factor (d)(7) is designed to determine whether the disqualification is based on conduct or conviction. If the Plumber’s Board grants licenses to those, say, who were fired from a job or suspended from school for marijuana possession, then it is probably not unreasonably dangerous or risky to public safety to allow an applicant who was convicted of precisely the same conduct to have a license to practice. On the other hand, if the agency would deny a position to a school bus driver applicant who had his child taken away in a civil action based on child abuse, that is strong evidence that a conviction for child abuse is directly related to fitness for the employment.

            SECTION 6. CERTIFICATES OF REHABILITATION FOR FORMER OFFENDERS.

                        (a) A person subject to a collateral sanction in this state because of a criminal conviction in this state or another jurisdiction may apply to the court of proper jurisdiction in the county in which the person lives for a certificate of rehabilitation.

                        (b) To obtain a certificate of rehabilitation, the applicant must show that:

                                    (1) at least [2] years has elapsed since the most recent conviction of any felony, and since release from any prison or jail sentence imposed under that conviction;

                                    (2) for the [2] years immediately prior to application, and during the pendency of the application, the applicant has been engaged in a law-abiding occupation or activity, including lawful employment, training, education, or rehabilitative programs, and has been free of felony or serious misdemeanor convictions during that period;

                                    (3) there is no unresolved intentional or unjustified failure to comply with the terms of any criminal sentence;

                                    (4) there is no unresolved felony or serious misdemeanor criminal charge pending against the applicant; and

                                    (5) if the applicant was convicted of an offense involving drugs or alcohol or, if the conduct underlying the criminal conviction involved drugs or alcohol, the results of any urinalysis required by the court is free of evidence of the use of illegal drugs.

                        (c) The court may require any investigation it considers reasonably necessary, including the preparation of a report of the type prepared prior to sentencing a person convicted of a crime.

                        (d) If the showings required under subsection (b) are made, the court shall grant the application, and issue a certificate of rehabilitation. The certificate shall identify the offenses of which the applicant was convicted.

                        (e) A certificate of rehabilitation does not preclude a decisionmaker from considering the facts underlying the conviction or that they have been established by the judgment of conviction. A government decisionmaker shall evaluate the underlying facts using the factors set forth in Section 5(f).

                        (f) A certificate of rehabilitation shall be admissible, as evidence of due care, where a public or private decisionmaker is alleged in an action to have been negligent, or otherwise at fault, for hiring, retaining, leasing to, admitting to a school or program, or otherwise transacting with a convicted person who holds a certificate of rehabilitation, provided that the decisionmaker had knowledge of the certificate at the time of the alleged negligence or other fault.

                        (g) The applicant shall serve a copy of an application issued under this section on the prosecuting attorney for the county where the applicant resides and, if it is not the same agency, the prosecutor’s office responsible for obtaining the conviction giving rise to the collateral sanction. Prosecutors served may appear and participate.

Comment

            All or virtually all states have pardons; about half the states also have expungement, sealing, set-aside, vacation, or some other mechanism for restoring civil rights or avoiding collateral sanctions. I am not optimistic that a uniform law in this area would be widely adopted. This provision is designed to come at the problem a different way, by creating a piece of credible information that will be useful to decisionmakers.

            At one level, the “certificate of rehabilitation” is well-recognized in American law. The Federal Rules of Evidence and the rules of evidence of many states provide that a person cannot be impeached with a conviction that has been subject to a certificate of rehabilitation. Other statutes provide that other collateral sanctions will be inapplicable to convictions subject to a certificate of rehabilitation, or a “certificate of good conduct.”

            Yet, many states referring to certificates of rehabilitation in their laws do not have common law or statutory procedures for issuing them. Evidently, only California, Illinois, Mississippi and New York have statutory procedures for their issuance. California administrative regulations instruct some boards to take them into account in making licensing determinations. This section establishes a framework for issuance of certificates of rehabilitation. 

            Certificates of rehabilitation have two consequences. First, under Section 5(d)(4), a conviction which is subject to a certificate of rehabilitation would not count as a conviction for purposes of statutes imposing collateral sanctions. Section 5(d)(4) in this respect follows the approach of the rules of evidence cited in Note 74.

            A certificate of rehabilitation also provides an objective basis for employers, landlords and other decisionmakers to differentiate among ex-offenders. Many employers and landlords will be willing to deal with people with criminal records, so long as they are now law-abiding. A certificate of rehabilitation will give them some assurance that that is the case. Decisionmakers who rely on a certificate will have some legal protection under Section 6(f): The certificate is admissible in evidence should a lawsuit occur.

            SECTION 7. ADVISEMENT AT GUILTY PLEA.

                        (a) Before accepting a plea of guilty or [nolo contendere or no contest] to a criminal charge, the court shall personally state the following to the defendant:

Conviction of this offense may have legal consequences beyond the [fine / imprisonment / supervision] I have previously explained to you. These additional legal consequences may include, but are not limited to, disqualifying you from obtaining a government license, permit, or employment, making you ineligible for public benefits, such as public housing, forfeiture of property, enhanced punishment if you are convicted of another crime in the future, and limiting your civil rights, such as prohibiting you from voting or possessing a firearm. If you are not a citizen of the United States, you are hereby advised that your plea may result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization.

                        (b) After giving the advisement in subsection (a), the court shall ask the defendant and defense counsel:  

Have you, [defendant], and you, [defense counsel], had a sufficient opportunity to discuss these legal consequences?

                        (c) The court shall not accept a plea without an affirmative answer to the question in subsection (b) from both the defendant and defense counsel, and shall grant a reasonable amount of time for consultation if requested.

Comment

            The Purpose of Advisement. It is relatively uncontroversial that it is desirable for persons pleading guilty to a criminal offense to understand the legal effects of that plea. It is fair to the individual pleading guilty, who is entitled to understand the consequences of the legal proceedings. It is also important for the court in sentencing and to the prosecutor in making charging decisions and arguing for a particular sentence. Most courts hold that under the due process clause of the Constitution, in order to make a guilty plea knowing, voluntary and intelligent, a defendant must be told of the term of imprisonment, fine, and post-release supervision that will result from their convictions. Identification of collateral sanctions beyond direct punishment need not be disclosed in order for a plea to be constitutionally valid.

            Even in the absence of constitutional requirements, however, a majority of the states provide for disclosure of some collateral sanctions. The principal context is in the case of deportation of non-citizens. A number of court decisions hold that it is unnecessary to inform persons pleading guilty of the possibility of deportation if they are not citizens of the United States. Yet, at least two dozen jurisdictions by court rule or statute require advisement of potential deportation to those pleading guilty. By court decision, Colorado and Indiana require advice of possible deportation, at least in some cases.

            Other jurisdictions require advisement of other collateral sanctions. Indiana requires that the defendant be informed that they will “lose the right to possess a firearm if the person is convicted of a crime of domestic violence.” Wyoming law requires the court to advise defendants “in controlled substance offenses [of] the potential loss of entitlement to federal benefits.” Even jurisdictions not requiring advisement of particular collateral consequences often recognize that it is a good idea.

            A majority of United States jurisdictions, then, require advice of at least one collateral sanction, showing broad support for the idea that sound public policy and fairness require advice beyond the constitutional floor. Yet, advising a defendant of one or more collateral sanctions without addressing all of them may be misleading. It could reasonably be understood to imply that the imprisonment, fine and other direct punishment, plus the collateral sanctions specifically mentioned, represent the totality of the legal effects of the conviction. For example, it would be reasonable but incorrect for a defendant pleading guilty in Wyoming to assume that because the court advised that “federal benefits” might be lost, no state benefits, such as access to public housing, were at risk. For this reason, the provision requires that the court advise defendants about the potential for a broad range of sanctions in several categories. This is the approach of the American Bar Association Criminal Justice Standards.

            One possible objection to advisement about applicable collateral sanctions is that if defendants actually know about the dozens or hundreds of negative legal effects of a criminal conviction, many will refuse to plead guilty. However, because the sanctions typically apply to a conviction by plea or jury verdict, pleading not guilty is not a means for a guilty person to avoid collateral sanctions. It is reasonable to assume that the largest group of people who will plead not guilty when they otherwise would have pleaded guilty will be those who have a defensible case, but planned to plead guilty under the misapprehension that a criminal conviction was no big deal

            The Method of Advisement. A defendant could be informed of potential collateral sanctions in several ways. At some early court appearance, the defendant could simply be given a booklet describing all collateral sanctions to figure out on her own, but simply being handed a booklet that is 30 or 40 pages long or longer is unlikely to be particularly informative to a criminal defendant.

            The defendant could be advised and her understanding confirmed by the court during the guilty plea colloquy. Judicial advisement would have the virtue of putting the defendant’s receipt and understanding of the advice on the record, but it would take a great deal of time, perhaps hours, for a judge to read all or part of the 30 or 40 page booklet during every guilty plea colloquy. Furthermore, because the waiver of rights and advisement of consequences typically occurs when the defendant is in the process of actually pleading guilty, it is too late for a defendant to begin to consider these issues for the first time at that point.

            This Act contemplates that the defendant will be advised and counseled by defense counsel before the guilty plea, and that counsel’s satisfaction of this obligation will be briefly confirmed on the record by the court. The advantage of advisement by defense counsel is that it would be take less in-court time, and it could be done at a more meaningful stage in the process, as part of the decision whether to plead guilty rather than as part of the plea itself. Competent defense lawyers now advise their clients of potential collateral sanctions. Moreover, advice could be tailored to the circumstances of the particular defendant; that is, if the defendant is a licensed barber rather than a licensed broker, the lawyer could focus on that and the other collateral sanctions of concern to the particular defendant as an individual. The judge is not in a position to do this as effectively, if for no other reason than the judge will not have access to the client’s privileged information. The defendant’s receipt and understanding of advice about collateral sanctions can quickly be put on the record by the judge during the guilty plea colloquy.

            Counsel’s task will be made easier by the compilation of collateral sanctions that is contemplated by Section 3 of this Act. All of the necessary information will be readily at hand. However, counsel’s advice in this area, as in others, is expected to be competent rather than perfect. A lawyer should be familiar with the law, including the law of collateral sanctions, and should make a reasonably diligent investigation about relevant facts. But if, in spite of reasonable efforts, it turns out that the plea had unintended negative consequences, because, say, a defendant’s naturalization was invalid for reasons not known to the lawyer, or a defendant failed to mention a business association that would be impaired by a conviction, that would not suggest that a lawyer’s representation was inadequate. However, even jurisdictions which, in general, impose no duty to advise defendants of collateral sanctions, hold that attorneys who give incorrect, misleading advice may render a plea constitutionally invalid.

            Although the major statutory change is in the context of the guilty plea colloquy, other areas of practice and policy will also change. For example, many jurisdictions have written plea forms, as pleadings or exhibits, which are signed by the defendant and defense counsel and filed as part of the record of the case. These forms should be amended to include the advisement of collateral sanctions, and acknowledgement of the opportunity for defense consultation. However, given the importance of ensuring that he defendant is actually informed and has actually had the opportunity to consult with counsel, the oral advisement should not be dispensed with. Another change might be amendment of the terms of government contracts with public defender organizations or private contract attorneys, to require this advice as part of representation of defendants.

            The Effect of Non-Compliance on the Validity of the Plea. A difficult question is the effect of non-compliance with a court rule or statute mandating advice. Existing law requiring advice of possible deportation deals with this problem in several ways. Some provisions are silent about the consequences of non-compliance. Others specifically provide for plea withdrawal if required advice is not given. New York, by contrast, states that the failure to advise a defendant in accordance with the law “shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction.” Wyoming requires notice of discretionary and mandatory assessments, and states that a failure to advise does not affect the validity of a plea, “but assessments, the general nature of which were not disclosed to the defendant, may not be imposed upon the defendant unless the defendant is afforded an opportunity to withdraw the guilty plea.”

            The criminal justice system depends in large part on the finality of guilty pleas. Accordingly, there is strong reason not to upset a plea for a technical deficiency in guilty plea procedure, and this is the prevailing rule. But what if the defendant can demonstrate a serious and prejudicial violation of a rule requiring defendants to be informed of collateral sanctions? What if, for example, a defendant who received a probationary sentence shows that: 1) the judge failed to confirm during the guilty plea colloquy that her defense lawyer had advised her of collateral sanctions, and she was in fact not informed that her guilty plea to a drug offense meant that she would be unable to adopt her foster child; 2) that she would not have pleaded guilty if she had known the legal consequences; and 3) she has a colorable argument that she is not guilty of the offense?

            In favor of the conclusion that noncompliance with a rule should never lead to upsetting a plea is the argument that jurisdictions would be justifiably reluctant to adopt a rule that could upset the finality of pleas. Under current law there is no requirement that defendant’s be advised; it would be an example of the rule that “no good deed goes unpunished” if a state’s effort to offer more than current law requires resulted in undermining pleas that are by all appearances entirely valid. On the other side is the idea that a rule stating in text “there are no penalties for failing to comply with this rule” is unlikely to command respect; it might be systematically ignored.

            This provision does not address the consequences of non-compliance. The arguments on both sides are reasonable, but ultimately it is not a point on which uniformity is essential. In any event, the rule has been drafted in such a way that judges can successfully comply with it, with minimal burden. Accordingly, the procedure will be followed routinely, and the question of remedy for non-compliance will be of little practical importance.