D R A F T
FOR APPROVAL
UNIFORM ACT ON
COLLATERAL CONSEQUENCES OF CONVICTION
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
MEETING IN ITS ONE-HUNDRED-AND-SIXTEENTH YEAR
PASADENA, CALIFORNIA
JULY 27 - AUGUST 3, 2007
UNIFORM ACT ON
COLLATERAL CONSEQUENCES OF CONVICTION
WITH PREFATORY NOTE AND PRELIMINARY COMMENTS
Copyright ©2007
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.
DRAFTING COMMITTEE ON UNIFORM ACT ON
COLLATERAL CONSEQUENCES OF CONVICTION
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this 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
BRIAN K. FLOWERS, Office of the General Counsel, 1350 Pennsylvania Ave. NW, Suite 4, Washington, DC 20004
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 E. Speedway, P.O. Box 210176, Tucson, AZ 85721-0176
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 E. Speedway, P.O. Box 210176, Tucson, AZ 85721-0176, 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
MARGARET COLGATE LOVE, 15 Seventh St. NE, Washington, DC 20002, ABA Advisor
THOMAS EARL PATTON, 1747 Pennsylvania Ave. NW, Suite 300, Washington, DC 20006, ABA Section Advisor
CHARLES M. RUCHELMAN, 1 Thomas Circle, Suite 1100, Washington, DC 20005-5894, ABA Section Advisor
EXECUTIVE DIRECTOR
JOHN A. SEBERT, 211 E. Ontario St., Suite 1300, Chicago, IL 60611, 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 ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
TABLE OF CONTENTS
SECTION 5. NOTICE OF COLLATERAL CONSEQUENCES IN PRETRIAL
PROCEEDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. NOTICE OF COLLATERAL CONSEQUENCES AT SENTENCING; ADVISEMENT UPON RELEASE.
SECTION 7. EFFECT OF REVERSED OR PARDONED CONVICTION[; ARREST NOT RESULTING IN CONVICTION].
SECTION 9. STATUTORY AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION.
SECTION 10. CERTIFICATE OF RELIEF FROM COLLATERAL SANCTION.
SECTION 11. CERTIFICATE OF GOOD CONDUCT.
SECTION 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
SECTION 14. SAVINGS AND TRANSITIONAL PROVISIONS.
UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
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 will 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.
According to the U.S. Department of Justice, there were about 71
million people with a criminal record in the United States as of December 2003, a number
approaching 25% of the entire population.
Minorities are far more likely than whites to have a
criminal record: Almost 17% of adult black makes have been incarcerated, compared to 2.6% of
white males, and almost half have a criminal record.
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. 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 individual could have contributed to the economy. Society also has a strong interest in seeing that individuals convicted of crimes can regain the legal status of ordinary citizens to prevent the creation of a permanent class of “internal exiles” who cannot establish themselves as law-abiding and productive members of the community.
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. 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.
Apart from impairment of self-esteem and informal social stigma, a criminal conviction
negatively affects an individual’s legal status. For many years, an individual 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 individual 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 individuals with felony drug convictions, 1987 legislation made individuals with
drug convictions ineligible for certain federal health care benefits;
a 1991 law required states to
revoke some driver’s licenses upon conviction or lose federal funding,
in 1993, Congress made
individuals with drug convictions ineligible to participate in the National and Community
Service Trust Program.
In 1996, Congress provided that individuals 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, individuals 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
individuals. 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 individuals 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.
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, individuals with convictions, 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 individuals. 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 4 proposes that collateral sanctions and disqualifications contained in state statutes or administrative regulations be collected in a single document.
Sections 5 and 6 propose to make the existence of collateral sanctions known to defendants at important moments: Early in the pretrial process to they can make an informed decision about how to proceed (Section 5), and when leaving the custody of the criminal justice system, so they can conform their conduct to the law (Section 6). Given that collateral sanctions and disqualifications will have been codified, it will not be difficult to make this information available.
Section 7 defines the judgments that count as convictions for purposes of imposing collateral sanctions, excluding those that have been reversed or set aside, as well as those pardoned based on innocence.
Section 8 limits the collateral sanctions and disqualifications applicable to employment, educational benefits, housing and licensing. 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 9 is designed to ensure that collateral sanctions are imposed by decision of the state legislature, if at all, prohibiting creation of sanctions by ordinance, policy or rule, unless authorized by statute.
Sections 10 and 11 create relief mechanisms. Section 10 is designed for an individual in the process of reentering society. It offers relief from one or more collateral sanctions based on a showing of public safety, and that relief would facilitate reentry. Section 11 creates a Certificate of Good Conduct for individuals who can demonstrate a substantial period of law-abiding behavior consistent with successful reentry and desistence from crime, and offers broader relief from collateral sanctions. The Certificate of Good Conduct 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 individuals with convictions whose behavior demonstrates that they are making efforts to conform their conduct to the law.
Section 12 provides that convicted individuals who have been released from prison should have the right to vote.
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 are mentioned.
UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Act on Collateral Consequences of Conviction.
SECTION 2. DEFINITIONS. In this [act]:
(1) “Collateral sanction” means a penalty, disability, or disadvantage, however denominated, that is imposed by law as a result of the conviction of an individual for a felony, misdemeanor, or other offense, but not as part of the judgment of the court. The term does not include imprisonment, probation, parole, supervised release, a forfeiture, restitution, a fine, an assessment, or the costs of prosecution.
(2) “Disqualification” means a penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or a court in a civil proceeding is authorized, but not required, to impose on an individual convicted of a felony, misdemeanor, or other offense on grounds related to the conviction.
(3) “Collateral consequence” means a collateral sanction or disqualification.
Comment
The definitions in paragraphs (1) and (2) are taken 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, or supervised release, 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 jury service.
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 individuals constitute collateral sanctions.
These definitions apply to juveniles prosecuted as adults. They also apply to juveniles prosecuted in a family, juvenile or similar court if the judgments of conviction, however denominated, give rise to collateral sanctions or disqualifications under state law.
SECTION 3. SCOPE OF ACT. This [act] does not:
(1) provide a basis for invalidating, or afford a remedy to invalidate, a conviction or plea;
(2) except as otherwise provided in Sections 7 through 12, provide a basis for not imposing, or afford a remedy for imposing, a collateral sanction or disqualification; or
(3) address the duty an individual's attorney owes to the individual.
Comment
Non-compliance with this Act does not give an individual the ability to attack a plea or
conviction. While states adopting this act should comply with it, non-compliance does not
necessarily render a conviction or plea illegal or unfair. This is consistent with current law. This
section is not intended to adopt or reject the decisions stating that while an attorney has no duty
to advise defendants of collateral sanctions, affirmatively incorrect or misleading advice may
render a plea constitutionally invalid.
SECTION 4. IDENTIFICATION, COMPILATION, AND PUBLICATION OF LAWS REGARDING COLLATERAL SANCTIONS AND DISQUALIFICATIONS.
(a) The [Revisor] shall:
(1) identify any provision in [this state’s Constitution], statutes, and administrative rules that imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision that may afford relief from them;
(2) not later than [insert date], prepare a compilation of citations to, and the text or short descriptions of, the provisions identified under subparagraph (a)(1); and
(3) update the compilation after each [regular session] of the legislature.
(b) The [Revisor] shall include the following statements in a prominent manner at the beginning of the compilation:
(1) This compilation has not been enacted into law and does not have the force of law.
(2) An error or omission in this compilation is not a reason for overturning a conviction or a plea of guilty or nolo contendere or for otherwise avoiding the imposition of a collateral sanction or disqualification.
(3) The laws of the United States and other jurisdictions impose additional collateral sanctions and disqualifications not listed in this compilation.
(4) This compilation does not include any law or other provision regarding a collateral sanction or a disqualification, or relief from such, enacted or adopted after the compilation was last updated or, if not updated, completed.
(c) The [Revisor] shall:
(1) publish, or cause to be published, the compilation, updated as required under subsection (a)(3) as an appendix to the [state codes]; and
(2) within [four] months after initial compilation and after preparation of an update, make the latest version of the compilation available on the Internet without charge.
Comment
In a 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 and Disqualifications, regulating the legal status of this group in scores or hundreds of ways. But instead of publishing these laws together, the statutes are divided up and scattered. The sanctions have proliferated unsystematically, with a prohibition on individuals with felony convictions obtaining one kind of license popping up in one corner of a state’s code, a prohibition on obtaining some other kind of government employment appearing in an agency’s rules.
While some disabilities may be well-known, such as disenfranchisement and the firearms
prohibition, in most jurisdictions no judge, prosecutor, defense attorney, legislator or agency
staffer 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 individuals with
convictions, 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 rules defeats the
purpose of having published codes in the first place.
Section 4(a) proposes that Revisors of Statutes create a compilation with citations to and short descriptions of all statutes and administrative rules creating collateral sanctions and disqualifications. This compilation would not be positive law, but would be appended to the state code, and also be made available separately. This compilation would create a single document that readers could consult to understand the state of the law. No substantive change in the meaning of the laws is intended through this compilation, and it would so state. Yet, collecting collateral sanctions and disqualifications in the state’s code and administrative regulations, and describing them in simple, plain language, would make the formal written law knowable to those who use and are affected by it.
Some states do not have codified regulations. In those states, the law should require boards, agencies and other promulgators of regulations to notify the revisor of statutes of new regulations creating collateral sanctions or disqualifications.
Although the compilations would not replace the underlying law they describe, they should be officially published as appendices to states’ codes. This would assist in ensuring that the compilations remain current and complete; if published unofficially, they might well go out of date. Further, including the compilations in the codes will give legislators an opportunity to examine the state’s collateral sanctions and disqualifications as a body. At the moment, it is virtually impossible for policymakers and the public to make informed judgments about whether collateral sanctions and disqualifications are overabundant, just right, or insufficient.
The ABA Standards recommended formal codification, i.e., removing such provisions from their current locations and transferring them in toto to a new title. See ABA Criminal Justice Standard 19-2.1. However, this might leave the amended laws confusing and difficult to understand, and most of the benefit of full codification can be achieved by creating the compilations proposed here.
Once the compilations are created, they should be made available widely; this is the goal of Section 4(c). For each state, the compilation 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 rules, should be made available as a body. Certainly these documents should be viewable and downloadable on the Internet without charge, and if feasible distributed as a hardcopy booklet.
SECTION 5. NOTICE OF COLLATERAL CONSEQUENCES IN PRETRIAL PROCEEDING. Not later than the time of arraignment or other judicial proceeding at which an individual is formally advised of the potential sentence for crime for which the individual is charged, [the person designated by the court] shall provide to the individual the following notice in writing:
NOTICE OF COLLATERAL CONSEQUENCES
Conviction of this offense may have legal consequences beyond whatever imprisonment, supervision and fine are provided by law. 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; enhancing punishment if you are convicted of another crime; 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, conviction may result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization. The law provides ways to obtain relief from collateral consequences, and further information on collateral consequences and relief from them is available on the Internet [at list website].
Comment
The Purpose of Advisement. It is relatively uncontroversial that it is desirable for
individuals charged with a criminal offense to understand what is at stake. Collateral sanctions
and disqualifications are also important for the court in sentencing
and to the prosecutor in
making charging decisions and arguing for a particular sentence.
However, there is no
constitutional requirement that collateral sanctions and disqualifications be brought into the
process; 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
individuals 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 in at least 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 individual 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 and Timing 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. Therefore, this act contemplates that the notification will take place well before any guilty plea.
The notice will be provided by the court, in writing and in general terms, at arraignment
or some other early point in the process. If the arraignment or appearance is by mail, the notice
may be given by mail. The notice may be part of another document or form which is given to
the defendant at arraignment. This notice will give the defendant an opportunity to ask their
attorney about the issue. Some retained or appointed counsel will give advice on collateral
sanctions and disqualifications; this is often considered part of the job by competent defense
attorneys.
However, if the lawyer in the criminal case does not give advice, the defendant will
know to seek other counsel or research the issue on their own.
Whoever looks into the matter will find their burden eased by the compilation of collateral sanctions that is contemplated by Section 4 of this Act. All of the necessary information will be readily at hand.
The Effect of Non-Compliance on the Validity of the Plea. Compliance with this
provision should be fast and simple, therefore, the question of the consequences of non-compliance should arise rarely if ever. However, the criminal justice system depends on the
finality of judgments. Accordingly, there is strong reason not to upset a plea for a technical
deficiency in guilty plea procedure, and this is the prevailing rule.
Section 3(1) provides that
the general rule applies here, so failure to receive notice of collateral sanctions and
disqualifications is not a basis for challenging a plea or conviction.
SECTION 6. NOTICE OF COLLATERAL CONSEQUENCES AT SENTENCING; ADVISEMENT UPON RELEASE.
(a) If an individual convicted of a crime is not sentenced to a term of imprisonment or other incarceration, the [court][person designated by the court][designated agency or person] shall at the time of sentencing provide written notice to the individual that collateral sanctions and disqualifications may apply because of the conviction, that there may be ways to obtain relief from them, and that a compilation of the relevant laws and rules is available on the Internet. The notice must give the individual information on how to contact agencies, groups, or persons that offer assistance to individuals seeking relief from collateral sanctions and disqualifications.
(b) No sooner than [30], but, if practicable, no later than [10] days before release, an officer or agency releasing an individual from imprisonment or other incarceration shall advise the individual that collateral sanctions and disqualifications may apply because of the conviction, that there may be ways to obtain relief from them, and that a compilation of the relevant laws and rules is available on the Internet. The officer or agency shall also give the individual information on how to contact agencies, groups, or persons that offers assistance to individuals seeking relief from collateral sanctions and disqualifications.
Comment
This section is designed to remind individuals of their legal obligations when they are
about to enter free society. Section 6(a) provides for notice of collateral sanctions at sentencing
for those sentenced to probation or other sentence not involving prison, jail or other physical
custody. For those sentenced to some form of physical custody, Section 6(b) provides for notice
shortly before release from confinement (even if the individual will then be on parole or other
supervision). Although Section 5 contemplates that these individuals would have gotten general
notice of collateral sanctions at the beginning of the criminal proceeding, for many defendants
that will have been months or years earlier. The point of notice is not fairness to the defendant in
making the decision how to proceed; the conviction by this stage is a fact. Rather, formal
advisement promotes enforcement of the law. If, for example, individuals 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 an individual with a felony
conviction 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.
States have concluded that it is fair to the individual and beneficial to society to let
at least some individuals with convictions pay their debt to society and move on. Notification to
all individuals with convictions will facilitate the participation of deserving but legally
unsophisticated individuals. However, failure to provide notice as contemplated in Section 6
does not invalidate the applicability of the collateral sanctions, or provide a cause of action for
money damages.
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 printed on a form issued in the ordinary course of processing an individual for release, along the following lines:
You should be aware that a number of legal restrictions apply to individuals 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. The Legal Aid Society offers a program to assist individuals with convictions in obtaining relief from legal barriers.
SECTION 7. EFFECT OF REVERSED OR PARDONED CONVICTION[; ARREST NOT RESULTING IN CONVICTION].
(a) A conviction that is reversed, vacated, or otherwise overturned, by a court of competent jurisdiction, or that is the subject of a pardon based on innocence, does not give rise to a collateral sanction or disqualification, and is not evidence that any fact alleged in the course of the associated proceeding is true.
(b) A conviction that is the subject of a pardon not based on innocence or an order removing all collateral sanctions, or all collateral sanctions with specified exceptions, in the jurisdiction where the conviction was obtained, does not give rise to a collateral sanction, except that the order shall not remove[:
(1)] an otherwise applicable collateral sanction that the order specifies is excepted[;
(2) an otherwise applicable sex offender registration requirement or driver’s license suspension or revocation based on conviction of driving under the influence of alcohol or drugs; or
(3) an otherwise applicable restriction on possession of weapons [unless the order expressly restores the individual’s ability to possess weapons]].
[(c) An arrest, accusation, complaint, indictment, information, or other proceeding not resulting in a conviction, including a proceeding in which charges are dismissed pursuant to a plea agreement, is not evidence that any fact alleged in the course of the associated proceeding is true.]
Comment
Section 7 regulates the application of collateral sanctions by defining conviction. Section 7(a) deals with convictions that no longer constitute convictions and no longer create a collateral estoppel effect. They include convictions reversed on appeal or vacated by the trial court based on a post-trial motion, as well as convictions pardoned based on innocence. Convictions subject to a writ of habeas corpus and not subsequently retried are also in this category. Section 7(b) provides that convictions that have been the subject of some form of relief, such as a pardon or Certificate of Good Conduct, no longer count as convictions for the purpose of imposing collateral sanctions, but can still be used as proof of the underlying facts.
Section 7(b) makes clear that arrests or charges not leading to conviction cannot be the basis for imposing a collateral sanction, nor can they constitute evidence that the accusation is true. However, nothing prohibits an arrest from being the basis for further inquiry, or the underlying facts verified through independent investigation being the basis for disqualification.
SECTION 8. LIMITATION OF COLLATERAL SANCTION AND DISQUALIFICATION RELATED TO EMPLOYMENT, EDUCATION, HOUSING, AND LICENSING.
(a) In this section, “state” means:
(1) the state acting directly and through its departments, agencies, officers, or instrumentalities, including municipalities, political subdivisions, educational institutions, boards, or commissions, or their employees [.] [; and]
[(2) government contractors (including subcontractors) made subject to this section by contract, law other than this act, or ordinance.]
(b) Except as otherwise provided in subsection (d), the state, without individualized inquiry, because of a conviction [or because of an arrest or criminal charge], may not:
(1) [terminate or] refuse to hire an individual, or otherwise discriminate against an individual with respect to the compensation, terms, conditions, or privileges of employment, except that an individual may be temporarily suspended or conditioned pending an individualized inquiry; [or]
(2) refuse to admit an individual, or otherwise discriminate against an individual with regard to an educational opportunity;
(3) refuse to rent, sell to, or otherwise discriminate against an individual with respect to housing; or
(4) suspend, revoke, condition, or refuse to issue or renew a license, permit, or certificate necessary to practice or engage in an occupation, profession, trade, or business, except that a license, permit or certificate may be temporarily suspended or conditioned pending an individualized inquiry.
(c) The state may exclude an otherwise qualified individual from employment, education, housing or licensing opportunities based on a conviction if the decisionmaker determines that granting the opportunity presently poses an unacceptable risk to the safety or welfare of any individual or the public, including the risk that granting the opportunity will provide an occasion for the individual to commit a similar offense. [In determining whether the individual poses an unacceptable level of risk, the state may consider:
(1) the individual’s age when the offense was committed;
(2) the time since commission of the offense and since release;
(3) the length and consistency of the individual’s work history, including whether the individual has a recent record of steady employment;
(4) the individual’s education level;
(5) the facts and circumstances underlying the crime and their relation, if any, to the duties or functions of the occupation, profession, or educational opportunity;
(6) the individual’s rehabilitation and conduct since the offense, including whether the individual has received a certificate under Section 10 or 11; and
(7) whether other individuals who engaged in similar prohibited conduct, whether or not convicted, would be excluded on the ground that they present an unacceptable risk.]
(d) Subsection (b) is not applicable to law enforcement agencies [as defined in [insert reference to other law defining law enforcement agencies]] [including the attorney general, prosecutors’ offices, police departments, sheriffs’ departments, the state police, and the department of corrections.] [However, law enforcement agencies in their discretion may consider employment applications from individuals with criminal records.]
(e) This section does not eliminate any legal right or remedy, or create a private right of action for damages or relief other than a declaration that a policy is invalid or, if an individual has shown that an employment, education, housing, or licensing opportunity was denied in violation of this section, for an order that the individual’s application be reconsidered in accordance with this section.
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 the laws 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 decision-maker on a case by case basis, depending on whether it is “directly” or “substantially” related to the employment or license at stake.
The principle that convictions should be disqualifying only if related to the current
opportunity is deep in the law. Of the minority of states without general laws, many nevertheless
require some sort of nexus 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 felony 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 relates to 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.”
At one level, these prohibitions are not surprising. Frequently, conditions of parole, probation, or supervised release require employment or educational training, and stable housing. Accordingly, the law recognizes that these factors promote rehabilitation and reintegration, and may be necessary for it. 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 8 is based on the Model Sentencing and Corrections Act (“MSCA”), § 4-1005. However, the provision in this Act 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 individual “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 8(a) differs from the MSCA 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 individuals with convictions, it is likely to be the public sector.
[However, Section 8(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. States should examine their laws governing public employment and licensing to ensure that they conform to this policy.]
Section 8(b) establishes the general principle that blanket collateral sanctions should not be created with respect to employment, admission to educational institutions, housing, and licensing. The restriction applies 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. 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 8(c) describes the factors relevant to a case by case analysis of a conviction.
Section 8(c)(2) uses the passage of time as a factor. Some jurisdictions have a term of years,
after which, if the individual has not been convicted of another crime, rehabilitation is
presumed.
Factor (c)(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 parental rights terminated 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.
Nothing in this section is meant to authorize or require preferences for applicants
who have criminal convictions.
Section 8(d) differs from the MSCA by allowing law enforcement employers to bar individuals based on conviction, rather than on a case by case analysis. A number of states specifically exclude law enforcement from the coverage of their statutes, and undoubtedly many others, not mentioning it specifically, do so in practice. At the same time, that agencies are allowed to discriminate because exempted from the general rules does not mean they always do; some jurisdictions allow individuals with criminal records to be, for example, law enforcement officers, even though they may not be required to let them compete for those jobs.
SECTION 9. STATUTORY AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION. If a rule, ordinance, or policy imposes a collateral sanction without specific statutory authorization it is deemed to authorize the imposition of a disqualification. A general grant of authority to adopt rules, ordinances or policies, or a grant of authority to establish standards requiring good moral character or other criteria for hiring, licensing, or admission to educational programs may not be interpreted as granting specific authorization, but is authority to take the facts underlying a conviction into account on a case-by-case basis.
Comment
Reentry of individuals with criminal convictions is a matter of important state policy. If a program of prisoner reentry fails, then the state as a whole pays the price. Accordingly, 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 decision- making, or because they did not think deeply about the issue, a board might impose absolute bans on some or all individuals with criminal convictions under circumstances when the legislature as a whole would find a categorical policy unwarranted. Section 9 requires 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 10. CERTIFICATE OF RELIEF FROM COLLATERAL SANCTION.
(a) On motion of an individual convicted of an offense, the court that sentenced the individual may issue, at any time, a certificate of relief from one or more collateral sanctions relating to employment, education, housing, public benefits or occupational licensing[, except a sex-offender registration requirement or driver’s license suspension or revocation based on conviction of driving under the influence of alcohol or drugs]. The motion must specify all collateral sanctions and convictions from which relief is sought. The individual shall serve a copy of the motion on the agency that prosecuted the individual, which may appear and participate. The court shall hold a hearing before deciding the motion if requested by the individual or the prosecutor. The court may issue a certificate if, after reviewing the record, including the individual’s criminal history, and any response, the court finds that relief from a collateral sanction is consistent with public safety and is likely to assist the individual in maintaining employment, reentering the community, or living a law-abiding life.
(b) If an individual is or will be subject to a collateral sanction under the law of this state based on a conviction in another jurisdiction, the [trial court of general jurisdiction in this state] of the county where the collateral sanction will apply, on petition of the individual, may issue a certificate of relief from one or more collateral sanctions relating to employment, education, housing, public benefits or occupational licensing[, except a sex-offender registration requirement or driver’s license suspension or revocation based on conviction of driving under the influence of alcohol or drugs]. The petition must specify all collateral sanctions and convictions from which relief is sought. The individual shall serve a copy of the petition on the [appropriate prosecuting authority in this state], which may appear and participate. The court shall hold a hearing before deciding the petition if requested by the individual or the prosecutor. The court may issue the certificate if, after reviewing the record, including the individual’s criminal history, and any response, the court finds that relief from a collateral sanction is consistent with public safety, and is likely to assist the individual in maintaining employment, reentering the community, or living a law-abiding life.
(c) The issuance of a certificate of relief from collateral sanctions relieves the individual from any collateral sanction specified in the certificate but does not preclude a decision maker from considering the facts underlying the conviction or that the facts have been established by the judgment of conviction. [The state as defined in Section 8(a) shall evaluate the underlying facts using the factors set forth in Section 8(c).]
(d) A certificate of relief from collateral sanctions may be modified upon motion of the individual or modified or revoked by the issuing court for cause and is revoked by operation of law if the holder is subsequently convicted of a felony.
Comment
This Section creates a mechanism for relief from a collateral sanction as an aid to reintegration into society. The remedy is in addition to any others that might already exist. Section 10(a) contemplates that an individual convicted in this state may obtain relief from the sentencing court. An individual with a federal conviction or a conviction from another state may obtain relief from a court of this state where the individual lives or works under 10(b). In either case, the court is not necessarily asked to make the final decision. If, for example, an individual is absolutely prohibited from .obtaining a license as a barber because of a felony conviction, the effect of a certificate of relief from that collateral sanction will be to allow the individual to apply for a license. As 10(c) makes clear, the licensing agency may still consider whether the facts underlying the conviction render the individual unqualified for licensing. But the decision will be based on the underlying facts, not on the conviction itself.
Section 10(d) provides for modification on motion of the individual if, for example, the individual later wishes to apply for a different license than the one covered in the initial application. It can also be modified or revoked on motion of the prosecution, based on, for example, misconduct implicating public safety short of a felony conviction. A felony conviction revokes the certificate automatically.
In order for employers, boards, law enforcement agencies and others to monitor the validity of certificates issued under Section 10(a), they should be treated as further proceedings in the underlying criminal case for purposes of docketing and filing, and in the state’s central criminal justice record system. If use of a revoked or forged certificate is not already criminalized by a state’s fraud or forgery statute or other penal law, states should consider adding a specific criminal statute criminalizing such conduct.
SECTION 11. CERTIFICATE OF GOOD CONDUCT.
(a) An individual convicted of a crime within or without this state who lives or works in this state may apply for a certificate of good conduct from the [trial court of general criminal jurisdiction] in the [county] where the individual lives or, if the individual does not live in this state, where the individual works. The court shall give notice of the application to [insert name of appropriate prosecuting authority in this state], which may appear and participate. To obtain a certificate of good conduct, the individual must establish that:
(1) at least [five] years have elapsed since the most recent conviction of the individual of any felony or of a misdemeanor involving violence or dishonesty and, if applicable, since release from [prison] [prison, jail, half-way house, home detention, or other confinement];
(2) for the [five] years before issuance of an order granting the certificate the individual has been engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs or, if the individual is retired or disabled, that the individual has a lawful source of support;
(3) the individual complied with the terms of any criminal sentence, or that failure to comply is justified or involuntary;
(4) no criminal charges are pending against the individual; and
(5) if the individual was convicted of an offense involving drugs or alcohol or, if the conduct underlying the criminal conviction involved drugs or alcohol, the result of any test required under subsection (b) does not show the use of illegal drugs.
(b) In connection with an application for a certificate of good conduct, the court may order any test or investigation it considers reasonably necessary, which shall include at least the preparation of a report of the type prepared before sentencing an individual convicted of a felony.
(c) If the requirements of subsection (a) are met, and the court finds no reason to deny the application, the court may grant the application and issue a certificate of good conduct. The certificate must identify the offenses of which the individual was convicted.
(d) [Except as provided in subsection (e),] [the] issuance of a certificate of good conduct removes collateral sanctions applicable under the law of this state but does not preclude a decisionmaker from considering the facts underlying the conviction and that they were established by the judgment of conviction. [The state as defined in Section 8(a) shall evaluate the underlying facts using the factors set forth in Section 8(c).]
[(e) Issuance of a certificate of good conduct does not remove an otherwise applicable sex- offender registration requirement, or driver’s license suspension or revocation based on conviction of driving under the influence of alcohol or drugs. Issuance of a certificate of good conduct does not remove an otherwise applicable restriction on possession of weapons unless it expressly restores the individual’s ability to possess weapons.]
[(f) Issuance of a certificate of good conduct in this state renders the underlying convictions inadmissible in a lawsuit alleging that a public or private decision-maker was negligent or otherwise at fault for hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting with an individual, if the decision-maker had knowledge of the certificate at the time of the alleged negligence or other fault. Issuance of a certificate of good conduct in this state is admissible as evidence of due care by any person who had knowledge of it, in deciding to hire, retain, license, lease to, admit to a school or program, or otherwise interact with an individual.]
[(g)] A certificate of good conduct may be revoked by the issuing court for cause and is revoked by operation of law if the holder is subsequently convicted of a felony.
Comment
This section is designed to recognize for individuals who have successfully reintegrated into society, and have demonstrated their good behavior for a substantial period of time. They have largely paid their debt to society, and can be relieved of collateral sanctions. There is of course a trade-off between the breadth of the relief and the showing necessary to obtain it; the broader the relief, the greater the showing that should be required to obtain it.
Section 11(a)(1) requires passage of a period of time after release. A good record in prison or other custody is not irrelevant, but is insufficient to show the reintegration into free society which is at issue. Section 11(a)(2) requires that the individual be involved in some legitimate activity in the period after release, or, if the individual is retired or disabled, that the individual has a lawful source of support. Section 11(a)(3) requires satisfaction of all provisions of all criminal sentences. This does not necessarily mean complete satisfaction if the requirement exists over a period of years; for example, if an individual was sentenced to pay restitution of $1,500 per year for 7 years, five years after release, if the individual was current on the payments, and otherwise eligible, the individual could receive a certificate of good conduct even though two years of restitution payments remained. In addition, Section 11(a)(3) contemplates that a failure to meet a condition of a criminal sentence may be excused, and a certificate of good conduct awarded, if the individual shows that the failure was beyond their control.
Certificates of good conduct have two consequences. First, under Sections 7(b) and 11(d), a conviction which is subject to a certificate of good conduct does not count as a conviction for purposes of statutes imposing collateral sanctions. However, the underlying facts may still be considered by a licensing agency.
In addition, a certificate of good conduct provides an objective basis for public and private employers, landlords and other decision-makers to differentiate among individuals with convictions. Many employers and landlords are willing to deal with people with criminal records, so long as they are now law-abiding. A certificate of good conduct gives them some assurance that that is the case. [Decision-makers who rely on a certificate will have some legal protection under Section 11(f): The certificate is admissible in evidence should a lawsuit occur, as evidence of due care, but the underlying conviction is not.]
In order for employers, boards, law enforcement agencies and others to monitor the validity of certificates issued under Section 11, applications from persons with convictions in the issuing state should be treated as further proceedings in the underlying criminal case for purposes of docketing and filing, and in the state’s central criminal justice record system. If use of a revoked or forged certificate is not already criminalized by a state’s fraud or forgery statute or other penal law, states should consider adding a specific criminal statute criminalizing such conduct.
SECTION 12. VOTING RIGHTS. An individual may not be denied the right to vote because of: (1) conviction for an offense other than a felony; or (2) for a felony [except during actual incarceration] [after completion of the sentence imposed, including probation, incarceration, parole and other post-incarceration supervision.].
Comment
This is derived from Model Sentencing and Corrections Act Section 4-110, which provides:
(a) A person convicted of an offense does not suffer civil death or corruption of blood.
(b) Except as provided by [the Constitution of this State or] this Act, a person convicted of an offense does not sustain loss of civil rights or forfeiture of estate or property by reason of a conviction or confinement; he retains all rights, political, personal, civil, and otherwise, including the right to:
(1) be a candidate for, be elected or appointed to, or hold public office or employment;
(2) vote in elections;
(3) hold, receive, and transfer property;
(4) enter into contracts;
(5) sue and be sued;
(6) hold offices of private trust in accordance with law;
(7) execute affidavits and other judicial documents;
(8) marry, separate, obtain a dissolution or annulment or marriage, adopt children, or withhold consent to the adoption of children; and
(9) testify in legal proceedings.
(c) This section does not affect laws governing the right of a person to benefit from the death of his victim.
SECTION 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.