UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION

Original Approach

November 21, 2007

            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, imposed on an individual as a result of the individual’s conviction for a felony, misdemeanor, or other offense, that applies by operation of law whether or not it is included in the judgment or sentence. 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 as a result of the individual’s conviction for a felony, misdemeanor, or other offense.

            (3) “Collateral consequence” means a collateral sanction or disqualification.

            SECTION 3. LIMITATION ON SCOPE. This [act] does not:

            (1) provide a basis for invalidating a conviction or plea; or

            (2) address the duty an individual’s attorney owes to the individual.

            SECTION 4. IDENTIFICATION, COLLECTION, AND PUBLICATION OF LAWS REGARDING COLLATERAL CONSEQUENCES.

            (a) The [designated governmental agency or official] shall:

                        (1) identify or cause to be identified 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], collect or cause to be collected citations to, and the text or short descriptions of, the provisions identified under subparagraph (a)(1); and

                        (3) update or cause to be updated the collection after each [regular session] of the legislature.

            (b) The [designated governmental agency or official] shall include or cause to be included the following statements in a prominent manner at the beginning of the collection:

                        (1) This collection has not been enacted into law and does not have the force of law.

                        (2) An error or omission in this collection is not a reason for invalidating a conviction or a plea or for otherwise avoiding the imposition of a collateral sanction or disqualification.

                        (3) The laws of the United States, other jurisdictions and [insert term for local governments] impose additional collateral sanctions and disqualifications not listed in this collection.

                        (4) This collection does not include any law or other provision regarding a collateral sanction or a disqualification, or relief from such, enacted or adopted after the collection was last updated or, if not updated, completed.

            (c) The [designated governmental agency or official] shall publish, or cause to be published, the collection, updated as required under subsection (a)(3) on the Internet without charge.

            (d) A failure to comply with this section shall not provide a basis for relief from the imposition of, or afford a remedy for imposing, a collateral consequence.

            SECTION 5. NOTICE OF COLLATERAL CONSEQUENCES IN PRETRIAL PROCEEDING.

            (a) Not later than the time of arraignment or other judicial proceeding at which an individual is formally advised of the potential sentence for the offense for which the individual is charged, [the designated government agency or official] shall communicate to the individual a notice substantially similar to the following:

NOTICE OF ADDITIONAL LEGAL CONSEQUENCES

If you are convicted of an offense you may suffer additional legal consequences beyond imprisonment, [insert term for post-incarceration supervision] and fines. These consequences may include:

•          being unable to get a government license, permit, or job, or benefits like public housing;

•          the government taking your property; and

•           prohibiting you from voting or possessing a firearm.

            Also, if you are not a U.S. citizen, conviction may result in your deportation, removal, exclusion from admission to the United States, or denial of citizenship. The law may provide ways to obtain relief from these consequences. Further information about the consequences of conviction is available on the [Internet] [at list website].

            (b) A failure to comply with this section shall not provide a basis for relief from the imposition of, or afford a remedy for imposing, a collateral consequence. 

        SECTION 6. NOTICE OF COLLATERAL CONSEQUENCES AT SENTENCING; ADVISEMENT UPON RELEASE.

            (a) If an individual convicted of an offense is not sentenced to a term of imprisonment or other incarceration, the [designated government agency or official] 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 collection 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, if any, 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 collection 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, if any, that offer assistance to individuals seeking relief from collateral sanctions and disqualifications.

            (c) A failure to comply with this section shall not provide a basis for relief from the imposition of, or afford a remedy for imposing, a collateral consequence. 

            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 consequence, 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 [in the jurisdiction where the conviction was obtained] [in this state] [in any jurisdiction] not based on innocence or an order [in the jurisdiction where the conviction was obtained] [in this state] [in any jurisdiction] removing all collateral sanctions, or all collateral sanctions with specified exceptions, does not give rise to a collateral sanction, but may give rise to a disqualification, except that the pardon or order shall not remove an otherwise applicable [:

                        (1)] collateral sanction that the pardon or order specifically excepts[;

                        (2) sex offender registration requirement or motor vehicle license suspension, revocation or ineligibility based on conviction of operating a motor vehicle under the influence of alcohol or drugs; or

                        (3) firearms restriction [unless the pardon or order expressly so provides]].

             [(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.]

            SECTION 8. LIMITATION OF COLLATERAL CONSEQUENCES 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), [and in [insert references to constitutional provisions removing or suspending officeholders based on criminal charge or conviction],] the state, without the individualized inquiry provided in subsection (c), 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’s employment 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, lease, or sell housing to an individual, or otherwise discriminate against an individual with respect to housing; or

                        (4) suspend, revoke, condition, or refuse to issue or renew a license, permit, certificate or registration necessary to own, have an interest in, be employed by, or be affiliated with, a business, or to practice or engage in an occupation, profession, trade, or business, except that a license, permit, certificate or registration may be temporarily suspended or conditioned or issuance or renewal temporarily delayed pending an individualized inquiry.

            (c) The state may exclude an individual, even if otherwise qualified, from employment, education, housing or licensing opportunities based on a conviction if the decisionmaker determines that granting the opportunity presently poses an unreasonable risk to the safety or welfare of any individual or the public. An individual applying for an employment, education, housing or licensing opportunities may be required to furnish copies of court records or other information about the offense. [In determining whether the individual poses an unreasonable risk, the decisionmaker 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 consistent employment;

                        (4) the individual’s education level;

                        (5) the facts underlying the conviction 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, have been or would be excluded on the ground that they present an unreasonable 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.

            SECTION 9. STATUTORY AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION. If an otherwise valid rule, ordinance, or policy imposes a collateral sanction without specific statutory authorization it is deemed to authorize the imposition of a disqualification and not a collateral sanction. A general grant of authority to adopt rules, ordinances or policies, or 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 provide for considering the facts underlying the conviction and that they were established by the judgment of conviction.

            SECTION 10. CERTIFICATE OF RELIEF FROM COLLATERAL SANCTION.

            (a) On motion of an individual convicted of an offense, the [court that sentenced the individual] [designated agency] 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 motor vehicle license suspension, revocation or ineligibility based on conviction of operating a motor vehicle 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] [designated agency] shall hold a hearing before deciding the motion if requested by the individual or the prosecutor. The [court] [designated agency] may issue a certificate if, after reviewing the record, including the individual’s criminal history, and any response, it finds that relief from a collateral sanction does not pose an unreasonable risk to the safety or welfare of any individual or the public and may assist the individual in maintaining employment, reentering the community, or living a law-abiding life.

            (b) If an individual is or may 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 a [insert jurisdictional reference] where the collateral sanction may affect the individual] [designated agency], 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 motor vehicle license suspension, revocation or ineligibility based on conviction of operating a motor vehicle 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], and on the prosecuting authority that obtained the conviction. Prosecutors served may appear and participate. The [court] [designated agency] shall hold a hearing before deciding the petition if requested by the individual or a prosecutor. The [court] [designated agency] may issue the certificate if, after reviewing the record, including the individual’s criminal history, and any response, it finds that relief from a collateral sanction does not pose an unreasonable risk to the safety or welfare of any individual or the public, and may 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 and that they were established by the judgment of conviction. [The state as defined in Section 8(a) shall evaluate the facts underlying the conviction 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 for cause and is revoked by operation of law if the holder is subsequently convicted of a felony.

            (e) An application under this Section is part of the original criminal action for purposes of [insert reference to crime victim’s rights law].

            SECTION 11. CERTIFICATE OF GOOD CONDUCT.

            (a) An individual convicted of an offense in this state or another jurisdiction who is or may be subject to a collateral consequence in this state may apply for a certificate of good conduct from the [[trial court of general criminal jurisdiction] in the [insert jurisdictional reference] where the individual lives or, if the individual does not live in this state, where the collateral sanction may affect the individual] [designated agency]. The [court] [designated agency] shall give notice of the application to [insert name of appropriate prosecuting authority in this state], and, if the individual was convicted outside this state, to the prosecuting authority that obtained the conviction. Prosecutors served 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; and

                        (4) no criminal charges are pending against the individual.

            (b) In connection with an application for a certificate of good conduct, the [court] [designated agency] may order any test, investigation or disclosure by the applicant 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] [designated agency] finds no reason to deny the application, the [court] [designated agency] 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 facts underlying the conviction 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 motor vehicle license suspension, revocation or ineligibility based on conviction of operating a motor vehicle under the influence of alcohol or drugs. Issuance of a certificate of good conduct does not remove an otherwise applicable firearms restriction unless it expressly so provides.]

            [(f) Issuance of a certificate of good conduct in this state renders the underlying convictions inadmissible as evidence 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 at the instance of any person who had knowledge of it, in deciding to hire, retain, license, lease to, admit to a school or program, or otherwise transact with an individual.]

            [(g)] A certificate of good conduct may be revoked by the [court] [designated agency] for cause and is revoked by operation of law if the holder is subsequently convicted of a felony.

            [(h)] An application under this Section is part of the original criminal action for purposes of [insert reference to crime victim’s rights law].

            SECTION 12. REPRESENTATION BY APPOINTED COUNSEL. An attorney or [insert name of indigent defense agency] appointed to defend an individual charged with an offense may but is not required to represent that individual [pro bono] in an application for an order under Sections 10 or 11 or other provision of law providing for relief from collateral consequences. Such [pro bono] representation is within the scope of the original appointment. [The attorney or [insert name of indigent defense agency] shall not be entitled to, or accept, additional compensation from the individual or the appointing authority unless authorized by law other than this Section.]

            SECTION 13. VOTING RIGHTS. An individual may not be denied the right to vote because of conviction:

             (1) of an offense other than a felony; or

            (2) of a felony [except during actual incarceration] [after completion of the sentence imposed, including probation, incarceration, parole and other post-incarceration supervision.].