UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION

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-SEVENTEENTH YEAR

BIG SKY, MONTANA

JULY 18 - JULY 25, 2008

UNIFORM ACT ON COLLATERAL
CONSEQUENCES OF CONVICTION

WITH PREFATORY NOTE AND PRELIMINARY COMMENTS

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, Council of the District of Columbia, 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 Speedway, P.O. Box 210176, Tucson, AZ 85721-0176

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

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

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

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

PAULA TACKETT, Legislative Council Service, State Capitol, Room 411, Santa Fe, NM 87501

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

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

EX OFFICIO

MARTHA LEE WALTERS, Oregon Supreme Court, 1163 State St., Salem, OR 97301-2563, President

JACK DAVIES, 1201 Yale Place, Unit #2004, Minneapolis, MN 55403-1961, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

MARGARET COLGATE LOVE, 15 Seventh St. NE, Washington, DC 20002, ABA Advisor

RODGER DREW, 1430 F St. NE, Washington, DC 20002, ABA Section Advisor

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

CHARLES M. RUCHELMAN, 1 Thomas Circle NW, Suite 1100, Washington, DC 20005-5894, ABA Section Advisor

EXECUTIVE DIRECTOR

JOHN A. SEBERT, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

111 N. Wabash Ave., Suite 1010

Chicago, Illinois 60602

312/450-6600

www.nccusl.org

UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION

TABLE OF CONTENTS

Prefatory Note. 1

SECTION 1. SHORT TITLE. 6

SECTION 2. DEFINITIONS. 6

SECTION 3. LIMITATION ON SCOPE. 7

SECTION 4. IDENTIFICATION, COLLECTION, AND PUBLICATION OF LAWS REGARDING COLLATERAL CONSEQUENCES. 8

SECTION 5. NOTICE OF COLLATERAL CONSEQUENCES IN PRETRIAL
PROCEEDING.. 10

SECTION 6. NOTICE OF COLLATERAL CONSEQUENCES AT SENTENCING
OR UPON RELEASE. 14

SECTION 7. AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION; CONSTRUCTION IN CASE OF AMBIGUITY. 16

SECTION 8. EFFECT OF OVERTURNED OR PARDONED CONVICTION. 16

SECTION 9. ORDER OF RELIEF FROM COLLATERAL SANCTIONS. 17

SECTION 10. CERTIFICATE OF RESTORATION OF RIGHTS. 20

SECTION 11. SANCTIONS NOT SUBJECT TO ORDER OF RELIEF FROM
COLLATERAL SANCTIONS OR CERTIFICATE OF RESTORATION OF
RIGHTS. 25

SECTION 12. PROCEDURES APPLICABLE TO ISSUANCE, REVOCATION, AND MODIFICATION OF ORDERS OF RELIEF FROM COLLATERAL SANCTIONS AND CERTIFICATES OF RESTORATION OF RIGHTS; VICTIMS’ RIGHTS. 26

SECTION 13. UNIFORMITY OF APPLICATION AND CONSTRUCTION.. 28

SECTION 14. SAVINGS AND TRANSITIONAL PROVISIONS. 28

SECTION 15. EFFECTIVE DATE. 29

UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION

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. Paige M. Harrison & Allen J. Beck, Prisoners in 2004, at 1, Bureau of Justice Statistics Bulletin (Oct. 2005, NCJ 210677)). 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. Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, at 1, Bureau of Justice Statistics Special Report (Aug. 2003, NCJ 197976). 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 four million adults were on probation on December 31, 2006, almost twice as many as the combined number on parole, in jail or in prison. Laura E. Glaze & Thomas P. Bonczar, Probation and Parole in the United States, 2006, at 1, Bureau of Justice Statistics Bulletin (Dec. 2006, NCJ 220218). 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. Survey of State Criminal History Information Systems, 2003, at 2, U.S. Dept. Of Justice, Bureau of Justice Statistics (Feb. 2006, NCJ 21097). 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. (Bonczar, Prevalence of Imprisonment, supra, at 5.)

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

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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 all arms of government and the general public, via Internet, of aggregations of public record information, including criminal convictions, about all Americans. See, e.g., Bureau of Justice Statistics, Report of the National Task Force on Privacy, Technology and Criminal Justice Information (Aug. 2001). 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. Corinne A. Carey, No Second Chance: People With Criminal Records Denied Access To Public Housing, 36 U. Toledo L. Rev. 545, 553 (2005); see generally James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 St. Thomas L. Rev. 387 (2006).

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. See Jeff Manza & Chris Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford 2006). Convicted individuals may be ineligible to hold public office. See, e.g., State ex rel. Olson v. Langer, 256 N.W. 377 (N.D. 1934). Federal law bars persons with convictions from possessing firearms (18 U.S.C. § 922(g)), military service (10 U.S.C. § 504), and on juries, civil and criminal. Brian Kalt, The Exclusion of Felons from Jury Service, 53 Am. U. L. Rev. 65 (2003). If a non-citizen, a person convicted of a crime may 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 solely because of conviction of a criminal offense. The Act also uses the term “disqualification” to refer to disadvantage or disability that an administrative agency, civil court or other state actor other than a sentencing court is authorized, but not required, to impose based on a conviction. Collectively, collateral sanctions and disqualifications are defined as collateral consequences.

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 (42 U.S.C. § 1320a-7(a)(3); a 1991 law required states to revoke some driver’s licenses upon conviction or lose federal funding (23 U.S.C. § 159), in 1993, Congress made individuals with drug convictions ineligible to participate in the National and Community Service Trust Program. 42 U.S.C. § 12602(e). In 1996, Congress provided that individuals convicted of drug offenses would automatically be ineligible for certain federal benefits. 21 U.S.C. § 862a. A year later, Congress rendered them ineligible for the Hope Scholarship Tax Credit. 26 U.S.C. § 25A(b)(2)(D). In 1998, individuals convicted of drug crimes were made ineligible for federal educational aid (20 U.S.C. § 1091(r)), and for residence in public housing. 42 U.S.C. § 13662. In addition, 1988 legislation authorized state and federal sentencing judges to take away eligibility for federal public benefits. 21 U.S.C. § 862.

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 Maryland and Ohio show literally hundreds of collateral sanctions on the books in those states. See Kimberly R. Mossoney & Cara A. Roecker, Ohio Collateral Consequences Project, 36 U. Toledo L. Rev. 611 (2005); Re-Entry of Ex-Offenders Clinic, University of Maryland School of Law, A Report on Collateral Consequences of Criminal Convictions in Maryland (2004). An April, 2006 Florida Executive Order directs collection of collateral sanctions by all state agencies. See Fl. Exec. Order No. 6-89 (April 25, 2006) (available at http://sun6.dms.state.fl.us/eog_new/eog/orders/2006/April/06-89-exoftf.pdf). 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. See Gabriel J. Chin, Are Collateral Sanctions Premised On Conduct Or Conviction?: The Case Of Abortion Doctors, 30 Fordham Urb. L.J. 1685, 1686 n.10 (2003). 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. See, e.g., Foo v. State, 102 P.3d 346, 357-58 (Hawai’i 2004); People v. Becker, 800 N.Y.S.2d 499, 502-03 (Crim. Ct. 2005); Page v. State, 615 S.E.2d 740, 742-43 (S.C. 2005); Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002)). 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 2002, 59% of those convicted of felonies in state courts were not sentenced to prison; 31% received probation and 28% jail terms. Matthew R. Durose & Patrick A. Langan, Felony Sentences in State Courts, 2002, at 2, Bureau of Justice Statistics Bulletin (Dec. 2004, NCJ 206916). 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.” National District Attorney’s Association, Policy Positions on Prisoner Reentry Issues §4(a) at 7 (Adopted July 17, 2005).

This Act deals with several aspects of the creation and imposition of collateral sanctions. The provisions are largely procedural, and de