UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION

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 designed to rationalize and clarify policies and provisions which are already widely accepted by the states.

Section 3 makes clear that neither the provisions of the Act nor non-compliance with them are a basis for invalidating a plea or conviction, making a claim of ineffective assistance of counsel, or suing anyone for money damages.

Section 4 requires collection in a single document of collateral sanctions and disqualifications contained in state statutes or administrative regulations.

Sections 5 and 6 propose to make the existence of collateral consequences known to defendants at important moments: At or before arraignment, so a defendant 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 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.

Section 8(a) defines the judgments that count as convictions for purposes of imposing collateral sanctions, excluding those that have been reversed, otherwise overturned or pardoned. Some states have forms of relief based on rehabilitation or passage of time, allowing convictions to be expunged, sealed, or set aside; in the case of out of state convictions, 8(b) asks states to make a choice about whether to give effect to grants of such relief by other states.

Sections 9 and 10 create mechanisms for relieving collateral sanctions imposed by law. By definition, collateral sanctions can only be imposed by state actors, so relieving them would have no effect on private persons or businesses, whose dealing with persons with convictions would be regulated, if at all, by law other than this act.

Section 9 creates an Order of Relief from Collateral Sanctions, aimed at 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. The Order of Relief merely lifts the automatic bar of a collateral sanction, leaving a licensing agency or public housing authority, for example, free to consider disqualifying the individual on a case by case basis.

Section 10 creates a Certificate of Restoration of Rights for individuals who can demonstrate a substantial period of law-abiding behavior consistent with successful reentry and desistence from crime. The Certificate of Restoration of Rights offers potential public and private employers, landlords and licensing authorities concrete and objective information about an individual under consideration for an opportunity, and thereby could facilitate the reintegration of individuals with convictions whose behavior demonstrates that they are making efforts to conform their conduct to the law.

In addition, Section 10 provides some guidance for evaluating whether a person with a Certificate should be disqualified. The factors it uses are a modified version of Section 4-1005 of the Model Sentencing and Correction Act which has been widely adopted in the states.

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 consequence” means a collateral sanction or a disqualification.

(2) “Collateral sanction” means a penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction or juvenile adjudication 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, forfeiture, restitution, fine, assessment, or costs of prosecution.

(3) “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 on grounds relating to the individual’s conviction or juvenile adjudication for a felony, misdemeanor, or other offense.

(4) “Felony” means a criminal offense as defined in [insert citation to state criminal code] or a criminal offense in any jurisdiction that would be a felony under the law of this state.

Comment

The definitions in paragraphs (2) and (3) are taken from the ABA Standards. (ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standard 19-1.1 (3d ed. 2004) (hereinafter, “ABA Criminal Justice Standard ____”). 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.” (Statutes requiring disclosure of criminal convictions, and allowing the decision-maker to consider them as part of a “good moral character” or general fitness analysis implicitly constitute disqualifications.) However, if a criminal court at sentencing takes away a medical license as punishment the action is neither a collateral sanction nor a disqualification. See, e.g., United States v. Singh, 390 F.3d 168 (2d Cir. 2004). 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 and the Act apply to juveniles prosecuted as adults. They also apply to juveniles prosecuted in a family, juvenile or similar courts if the judgments of conviction, however denominated, give rise to collateral sanctions or disqualifications under state law.

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

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

(2) affect the duty an individual’s attorney owes to the individual; or

(3) create a cause of action for money damages.

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 intended neither to adopt nor 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. See, e.g., Goodall v. United States, 759 A.2d 1077, 1082-83 (D.C. 2000); People v. Young, 355 Ill.App.3d 317, 323-24 (2005).

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

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

(1) shall 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 of law that may afford relief from them;

(2) within [insert time] after the effective date of this [act], shall collect or cause to be collected citations to, and the text or short descriptions of, the provisions identified under paragraph (1);

(3) in complying with paragraph (1) and (2), may rely on the study of this state’s collateral sanctions, disqualifications, and relief provisions prepared by the National Institute of Justice described in Section 510 of the Court Security Improvements Act of 2007; and

(4) shall update or cause to be updated the collection within [specify period] 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 described in subsection (a):

(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 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 them, enacted or adopted after the collection was prepared.

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

(d) Noncompliance with this section does not give rise to a cause of action for relief from a collateral consequence.

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 conviction of the various offenses in the 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 an appropriate government official or agency in each state create a collection with citations to and short descriptions of all statutes and administrative rules creating collateral sanctions and disqualifications. Fortunately, this task has been made easier by a recent federal law which mandates the Director of the National Institute of Justice to identify collateral sanctions and disqualifications in the constitutions, codes and administrative rules of the 50 states. Court Security Improvement Act of 2007 § 510, Pub. L. 110-177, 121 Stat. 2534, 2544. Accordingly, the federal government is going to do the bulk of the initial work.

This collection would not be positive law, nor would it substantively change existing law. 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. There, the law should require boards, agencies and other promulgators of regulations to notify the agency assigned responsibility for the collection of new regulations creating collateral sanctions or disqualifications.

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 approach was rejected because it might leave the amended laws confusing and difficult to understand. Most of the benefit of full codification can be achieved by creating the collections described here.

Once the collections are created, they should be made available widely; this is the goal of Section 4(c). 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.

(a) At or before arraignment or other judicial proceeding at which an individual is formally advised of the potential sentence for an offense with 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, [probation] [insert jurisdiction’s alternative term for probation], [insert term for post-incarceration supervision] and fines. These consequences may include:

$ being unable to get certain licenses, permits, or jobs;

$ being unable to get benefits such as public housing or education;

$ a higher sentence if you are convicted of another crime in the future;

$ 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 some relief from these consequences. Further information about the consequences of conviction is available [on the Internet] [at [list website]].

(b) Noncompliance with this section does not give rise to a cause of action for relief from a collateral consequence.

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. See, e.g., United States v. Pacheco-Soto, 386 F. Supp.2d 1198 (D.N.M. 2005) (downward departure based on deportable alien status); State v. Yanez, 782 N.E.2d 146, 155 (Ohio App. 2002) (noting that deportation may affect sentence); ABA Criminal Justice Standard 19-2.4(a). They also may be important to the prosecutor in making charging decisions and arguing for a particular sentence. See Robert M.A. Johnson, Collateral Consequences, Message from the President of the National District Attorney’s Association, May-June, 2001 (http://www.ndaa-apri.org/ndaa/about/president_message_may_june_2001.html).

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 at least some collateral sanctions. The principal context is in the case of deportation of non-citizens. A number of court decisions hold that it is not constitutionally required to inform individuals pleading guilty of the possibility of deportation if they are not citizens of the United States. Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); Commonwealth v. Fuartado, 170 S.W.3d 384, 385-86 (Ky. 2005). Yet, at least two dozen jurisdictions by court rule or statute require advisement of potential deportation to those pleading guilty. See U.S. Dist. Ct. for the Dist. of Colo. Local Rules § 3, App. K (form guilty plea notification requiring acknowledgment of possible deportation); Az. R. Crim P. 17.2(f); Cal. Pen. Code § 1016(5); Ct. Gen. Stat. Ann. § 54-1j; D.C. Stat. § 16-713(a); Fla. R. Crim. P. 3.170(C)(8); Ga. Code Ann. § 17-7-93(c); Haw. Rev. Stat. § 802E-1 through E-3; 725 Ill. Comp. Stat. 5/113-8; Iowa R. Crim. P. 2.8(2)(b)(3); Me. R. Crim. P. 11(b)(5); Md. R. 4-242(e); Ma. Gen. L. Ann. 278 § 29D; Ma. R. Crim P. 12(c)(3)(C); Minn. R. Crim. P. 15.01(10)(d); Mont. Code Ann. § 46-12-210(1)(f); Neb. Rev. Stat. § 29-1819.02(1); N.J. Dir. 12-03 (plea form promulgated pursuant to N.J. R. Crim. P. 3-9); N.Y. Crim. Proc. L. § 220.50(7); N.C. Stat. § 15A-1022(a)(7); Oh. Rev. Code § 2943.031(A); Or. Rev. Stat. § 135.385(d); R.I. Gen. L. § 12-12-22; Tex. Code Crim. P. Art. 26.13(a)(4); Wash. Rev. Code § 10.40.200(2); Wisc. Stat. Ann. § 971.08(1)(c). By court decision, Colorado and Indiana require advice of possible deportation in at least some cases. People v. Pozo, 746 P.2d 523 (Colo. 1987); Segura v. State, 749 N.E.2d 496 (Ind. 2001).

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.” Ind. Code § 35-35-1-2(a)(4). Wyoming law requires the court to advise defendants “in controlled substance offenses [of] the potential loss of entitlement to federal benefits.” Wy. R. Crim. P. 11(b)(1). Even jurisdictions not requiring advisement of particular collateral consequences often recognize that it is a good idea. Thus, Utah rules provide: “Unless specifically required by statute or rule, a court is not required to inquire into or advise concerning any collateral consequences of a plea.” Utah R. Crim. P. 11(e). Yet, the comments state that the rule means “the trial court may, but need not, advise defendants concerning the collateral consequences of a guilty plea.” See also, e.g., United States v. Banda, 1 F.3d 354, 356 (5^th Cir. 1993). The facts of reported cases also make clear that courts often advise defendants of collateral sanctions in the absence of a court rule or constitutional obligation. See, e.g., Duffy v. State, 120 P.3d 398 (Mont. 2005).

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 some 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. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (applying maxim expressio unius est exclusio alterius, the statement of one thing is the exclusion of other things); United States v. Glaser, 14 F.3d 1213 (7^th Cir. 1994). 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, which provides:

Before accepting a plea of guilty or nolo contendere, the court should advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant’s immigration status. The court should advise the defendant to consult with defense counsel if defendant needs additional information concerning the potential consequences of the plea.

ABA Standards for Criminal Justice: Guilty Pleas, Standard 14-1.4(c) (3d ed. 1999).

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 would have little effect.

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. See INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001) (“competent defense counsel, following the advice of numerous practice guides, would have advised [defendants] concerning” the possibility of the collateral sanction of deportation based on criminal conviction, and the avenues of relief therefrom); ABA Standards for Criminal Justice, Guilty Pleas, 14-3.2(f) (3d ed. 1999) (“To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from the entry of the contemplated plea.”) However, if the lawyer in the criminal case does not give advice, the defendant will be alerted to seek other counsel or research the issue on their own.

Whoever looks into the matter will find their burden eased by the collection of collateral consequences described in 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. See, e.g., Fed. R. Crim. P. 11(h) (“A variance from the requirements of this rule is harmless error if it does not affect substantial rights.”). Sections 3(1) and 5(b) 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 OR UPON RELEASE.

(a) An individual convicted of an offense must be given notice that collateral sanctions and disqualifications may apply because of the conviction, notice that there may be ways to obtain relief from them, and notice of where the collection of relevant laws published under Section 4(c) can be found. Notice substantially similar to the notice set forth in Section 5(a) is sufficient, but it must also include contact information for government or nonprofit agencies, groups, or organizations, if any, that offer assistance to individuals seeking relief from collateral sanctions and disqualifications, and information about when an individual convicted of a crime may vote under this state’s law.

(b) The [designated government agency or official] shall give the notice at sentencing if an individual is not sentenced to imprisonment or other incarceration. If the individual is sentenced to imprisonment or other incarceration, the officer or agency releasing the individual shall give the notice not more than [30], and, if practicable, at least [10] days before release.

Comment

Section 6(b) provides for notice of collateral consequences when a defendant is released from custody, or, if not sentenced to jail or prison, at the time of sentencing. 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. See, e.g., United States v. Bethurum, 343 F.3d 712 (5^th Cir. 2003) (defendant properly convicted of being felon in possession of a firearm, notwithstanding claim that he would not have pleaded guilty had he realized he would not be entitled to possess a firearm); Saadiq v. State, 387 N.W.2d 315 (Iowa) (affirming conviction in spite of defendant’s claim that he was not told he could not possess a firearm), appeal dismissed, 479 U.S. 878 (1986). In Lambert v. California (355 U.S. 225 (1957), 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. Several states require by statute or court rule that this information be made available, others no doubt make it available by policy or informally. See, e.g., Neb. Rev. Stat. § 29-2264(1); Az. R. Crim. P. 29.1; 15 Cal. Code Regs. § 2511(B)(7) R. Unif. Trial Courts § 200.9(a) cf. Md. Code, Crim Proc. § 6-232(a); Md. Rules, Rule 4-329. 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.

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

(a) A collateral sanction may be imposed only by statute, ordinance or rule authorized by law and adopted in accordance with [insert citation to State Administrative Procedure Act].

(b) If a law is ambiguous as to whether it imposes a collateral sanction or authorizes a disqualification, it must be construed as authorizing a disqualification.

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, Section 7(a) restricts creation of absolute, blanket collateral sanctions to the legislature, and those municipalities or agencies authorized by statute.

Section 7(b) is a rule of construction. In cases of ambiguity, a provision must be construed to impose a disqualification rather than an automatic collateral sanction.

SECTION 8. EFFECT OF OVERTURNED OR PARDONED CONVICTION.

(a) A conviction that has been reversed, vacated, or otherwise overturned by a court of competent jurisdiction, or that has been pardoned, does not give rise to a collateral consequence in this state.

(b) A conviction from another jurisdiction that has been vacated, expunged or set-aside, based on rehabilitation or good behavior, [does not] [does] give rise to a collateral consequence in this state.

Comment

Section 8(a) provides that convictions that have been overturned or pardoned do not give rise to collateral sanctions. If the conviction has been overturned based on legal or factual error, on appeal, motion for a new trial, or collateral review, or has been pardoned, it does not give rise to a collateral consequence in this state. If a state imposes collateral consequences based on convictions in other jurisdictions, this section contemplates that the state will give effect to an overturning in the jurisdiction where the conviction was obtained.

Some states have forms of relief from collateral consequences based on rehabilitation or good behavior, variously denominated expungement, vacation, set-aside and sealing. In the state where the relief is granted, this Act does not change its legal effect; it has whatever force it has. The drafting committee was unable to come to agreement on the question of the effect of this relief where granted in another state. However, the committee agreed that the issue should be addressed. Accordingly, Section 8(b) contains bracketed options, the first treating a conviction that has been relieved on some legal basis as not giving rise to a collateral consequence, the second treating it like any other conviction.

SECTION 9. ORDER OF RELIEF FROM COLLATERAL SANCTIONS.

(a) An individual convicted of an offense may petition for an order of relief from one or more collateral sanctions related to employment, education, housing, public benefits, or occupational licensing, except those listed in Section 11. The petition shall be presented to:

(1) the sentencing court at or before sentencing, and shall be heard at the sentencing hearing only if the court does not impose a period of incarceration on the convicted individual, other than for time already served; or

(2) the [designated board or agency] at any time after sentencing.

(b) Unless the court or [designated board or agency] finds that granting the petition would pose a substantial risk to the safety or welfare of the public or any individual, or that some other substantial reason warrants denial of the petition, the court or the [designated board or agency] shall grant a petition requesting relief, and issue an order of relief, from one or more of the collateral sanctions specified in subsection (a) if, after reviewing the record, including the individual’s criminal history, and any filing by a prosecutor or victim, it finds that the individual has established by a preponderance of the evidence that:

(1) granting the petition is likely to assist the individual in living a law-abiding life, including obtaining or maintaining employment, or reentering the community; and

(2) if less than five years has elapsed since the individual was sentenced for any felony, the individual has substantial need for the relief requested in order to live a law-abiding life.

(c) The state acting directly or through its departments, agencies, officers, or instrumentalities, including municipalities, political subdivisions, educational institutions, boards, or commissions, or their employees[, and government contractors, including subcontractors, made subject to this section by contract, law other than this [act], or ordinance,] may not impose a collateral sanction that is the subject of an unrevoked order of relief from collateral sanctions issued [in this state] [in any state], but may in its discretion impose a disqualification based on the conduct underlying the conviction.

[(d) An order of relief from collateral sanctions may be introduced in a judicial or administrative proceeding by a decisionmaker as evidence of the decisionmaker’s due care in deciding to hire, retain, license, lease to, admit to a school or program, or otherwise transact business or engage in activity with the individual to whom the order was issued, if the decisionmaker had knowledge of the order at the time of the alleged negligence or other fault.]

Comment

The principle that at least some licenses, benefits and employment opportunities should not be arbitrarily denied to people with criminal convictions is well established in state codes. More than 30 states have statutory restrictions on collateral sanctions and disqualifications imposed by state actors. See Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide, Ch. 4 (William S. Hein & Co. 2006). A core principle of many of these laws is that individuals should be excluded from situations where their conviction presents a risk to public safety, but they should not be excluded if there is no connection between the crime committed and the opportunity sought. See also National District Attorney’s Association, Policy Positions on Prisoner Reentry Issues § 7, at 10 (Adopted July 17, 2005) (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.”)

Sections 9 and 10 attempt to harmonize society’s interests in public safety and its interest in reentry and reintegration into society. Sections 9 and 10 create new mechanisms for relief of collateral sanctions under some circumstances. Section 9 is aimed at removing specific legal barriers for individuals first reentering society. It allows an individual to apply for relief from a collateral sanction relating to employment, education, housing, public benefits, or occupational licensing on a showing that the relief will assist in leading a law-abiding life. If a conviction giving rise to the collateral sanction is less than five years old, the applicant must show substantial need for the relief.

Relief may be granted by the court at sentencing, if the individual is immediately returning to free society. If the individual does not apply for, is denied, or is ineligible for, an order at sentencing, the order can be issued only by the board or agency (in many states it is likely to be the parole board) assigned responsibility for issuing the orders.

If the enacting state imposes collateral sanctions based on convictions from other jurisdictions, then Sections 9 and 10 can be invoked by individuals with such convictions. Relief is not restricted to individuals with collateral sanctions based on convictions from the enacting state.

Section 9(c) provides that the state shall not impose a collateral sanction that has been relieved by an Order of Relief. However, issuance of an Order of Relief does not guarantee that an individual will get the benefit or opportunity sought; it merely allows case-by-case determination. For example, a regulation might prohibit individuals with felony convictions from being licensed as a paramedic. An individual may persuade a court or the designated board or agency to issue an Order of Relief from that collateral sanction. That would lift the absolute bar, but would not restrict the licensing board from considering whether a license should issue, based on the conduct underlying the conviction. The decisionmaker is also entitled to consider the conviction conclusive proof that the individual committed every element of the offense of conviction. Unlike Certificates issued under Section 10, this Act does not provide specific principles for guiding decisionmakers in evaluating how much weight, if any, to criminal convictions subject to an Order of Relief; decisionmakers may use any factors that are reasonable.

Section 9(d), providing that an Order of Relief is admissible as evidence that a decisionmaker was not negligent, applies to private as well as public decisionmakers. Unless persons with criminal records are to be permanently unemployed and homeless, some businesses must transact with them, yet, they take legal risks if they do. Business owners have few sources of objective evidence about the backgrounds of applicants, and an Order of Relief issued by government authority after investigation is reasonably relied upon. Section 9(d) is bracketed not because the drafting committee doubted that an order of relief was admissible as relevant to the issue of due care, but because in some states the rules of evidence are outside the control of the legislature.

Sections 9 and 10 are based in part on the Model Sentencing and Corrections Act (“MSCA”), § 4-1005. However, 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).

Sections 9 and 10 also differ 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. See, e.g., Editorial, Cities that Lead the Way, N.Y. Times, Mar. 31, 2006 (discussing anti-discrimination policies regarding individuals with conviction for city agencies and city contractors in Boston, Chicago and San Francisco).

However, Sections 9 and 10 contemplates that enacting states might choose to make 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 10. CERTIFICATE OF RESTORATION OF RIGHTS.

(a) An individual convicted of an offense may petition the [designated board or agency] for a certificate of restoration of rights.

(b) Unless the [designated board or agency] finds that granting the petition would pose a substantial risk to the safety or welfare of the public or any individual, or that some other substantial reason warrants denial of the petition, the [designated board or agency] shall grant a petition for a certificate of restoration of rights and issue such a certificate, relieving an individual from one or more collateral sanctions including those listed in Section 9(a), or from all collateral sanctions, except those listed in Section 11, if it finds that the individual has established by a preponderance of the evidence that:

(1) at least [five] years has elapsed since the date of the individual’s most recent conviction of a felony [or misdemeanor] in any jurisdiction;

(2) for the [five] years preceding the issuance of the certificate, the individual:

(A) has not been confined pursuant to a criminal sentence in [prison] [prison, jail, a half-way house, home detention, or other actual confinement] in any jurisdiction;

(B) 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; and

(C) has not violated the terms of any criminal sentence, or that any failure to comply is justified, involuntary, or insubstantial; and

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

(c) The [designated board or agency] may issue a certificate of restoration of rights relieving all collateral sanctions under subsection (b), with specified exceptions in addition to the applicable exceptions listed in Section 11. The text of a certificate shall:

(1) list the particular collateral sanctions from which relief has been granted; or

(2) state that the certificate grants relief from all collateral sanctions except those collateral sanctions listed in Section 11 that are applicable to the individual, and any other collateral sanctions from which relief has not been granted.

(d) The state acting directly or through its departments, agencies, officers, or instrumentalities, including municipalities, political subdivisions, educational institutions, boards, or commissions, or their employees[, and government contractors, including subcontractors, made subject to this section by contract, law other than this [act], or ordinance,] may not impose a collateral sanction that is the subject of an unrevoked certificate of restoration of rights issued [in this state] [in any state].

(e) The state acting directly or through its departments, agencies, officers, or instrumentalities, including municipalities, political subdivisions, educational institutions, boards, or commissions, or their employees[, and government contractors, including subcontractors, made subject to this section by contract, law other than this [act], or ordinance,] may not impose a disqualification on an individual to whom an unrevoked certificate of restoration of rights has been issued covering the opportunity at issue unless the decisionmaker determines that granting the opportunity poses an unreasonable risk to the safety or welfare of the public or any individual. The decisionmaker may conduct any investigation it considers necessary, may require that an individual applying for an opportunity furnish copies of court records or other relevant information, and shall consider:

(1) the individual’s age when the offense was committed;

(2) the time since commission of the offense and since release from any custody;

(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 and training;

(5) the facts underlying the conviction and their relation, if any, to the duties or functions of the opportunity;

(6) the individual’s other criminal history, if any, and rehabilitation and conduct since the offense, including the individual’s receipt of an order of relief from collateral sanctions, a certificate of restoration of rights, a pardon, or other relief;

(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; and

(8) any other relevant factor.

(f) [(1)] If a certificate of restoration of rights is issued and unrevoked at the time of decision, the underlying conviction is inadmissible as evidence that a decisionmaker was negligent or otherwise at fault for hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the certificate was issued.

[(2) A certificate of restoration of rights may be introduced in a judicial or administrative proceeding by a decisionmaker as evidence of the decisionmaker’s due care in deciding to hire, retain, license, lease to, admit to a school or program, or otherwise transact business or engage in activity with the individual to whom the certificate was issued, if the decisionmaker had knowledge of the certificate at the time of the alleged negligence or other fault.]

Comment

Like Section 9, Section 10 allows the designated board or agency to relieve collateral sanctions. Section 10 relief, called a Certificate of Restoration of Rights, is available more broadly; it applies to any collateral sanction, or all collateral sanctions (except those listed in Section 11), and there is no required showing that relief is necessary to lead a law-abiding life. However, the applicant must make a substantial showing of good behavior for a period of years prior to the issuance of the Certificate. (The number of years is to be determined by each state, but the Act brackets five years.) For that period, the individual must have no convictions and no incarceration pursuant to sentence, have been employed, in school, or in rehabilitation, or, if retired or disabled, show a lawful source of income, and have complied with all of the terms of criminal sentences. The Act brackets whether conviction of a misdemeanor will render an individual ineligible, because a state might conclude that some minor traffic or parking offenses and the like should not be disqualifying. However, Section 10(b) allows denial of a petition based on some substantial reason not listed. Thus, even in a state that did not provide for automatic ineligibility based on misdemeanor convictions, a misdemeanor involving violence or dishonesty might well be grounds for denial.

Any collateral sanction may be relieved under Section 10, except those listed in Section 11. A Certificate of Restoration of Rights may be issued to relieve one or more specific collateral sanctions, all collateral sanctions, or all with specified exceptions. For example, the board might believe that an individual has demonstrated good behavior, warranting general relief from the burdens of a felony conviction, yet not want the individual to be around alcohol, or firearms. This is authorized by Section 10(c). In such a case, the Certificate will so state.

Section 10(d) provides that the state shall not impose a collateral sanction that has been relieved by a Certificate. If the state imposes collateral sanctions based on convictions from other states, the legislature should decide whether to give effect to a Certificate issued by another state.

A Certificate of Relief also provides relief from disqualifications. Under Section 10(e), a decision-maker may not impose a disqualification on an individual to whom an unrevoked certificate of restoration of rights has been issued covering the opportunity at issue unless the decisionmaker determines that granting the opportunity poses an unreasonable risk to the safety or welfare of the public or any individual. In making this determination, Sections 10(e) (1) and (2) require consideration of a number of factors, including the individual’s age and the passage of time since the offense and release. Some jurisdictions have a term of years, after which, if the individual has not been convicted of another crime, rehabilitation is presumed. See, e.g., N.M. Stat. Ann. § 28.2.4(B) (three years after imprisonment or completion of parole and probation); N.D. Cent. Code § 12.1-33-02.1(2)(c) (five years after discharge from parole, probation or imprisonment).

Section 10(e)(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. (ABA Criminal Justice Standard 19-3.1). Nothing in this Section or any other part of the Act authorizes or requires preferences for applicants who have criminal convictions.

Section 10(e)(8) allows the decisionmaker to consider any other relevant fact or circumstance not listed in (e)(1) through (7).

Section 10(f)(1) provides protection for public and private entities transacting with holders of Certificates of Restoration of Rights. The first part provides that if a person transacts with an individual holding an unrevoked Certificate, a conviction covered by the Certificate becomes inadmissible. However, if the person transacting with the holder knew, independently of the conviction, of particular facts underlying the conviction, a state’s rules of evidence might make that knowledge admissible.

Section 10(f)(2) is identical to Section 9(d) and is bracketed for the same reasons.

SECTION 11. SANCTIONS NOT SUBJECT TO ORDER OF RELIEF FROM COLLATERAL SANCTIONS OR CERTIFICATE OF RESTORATION OF RIGHTS. An order of relief from collateral sanctions or certificate of restoration of rights may not be issued to relieve the following sanctions:

(1) requirements imposed by [insert citation to state’s “Megan’s Law” enacted pursuant to 42 U.S.C. § 14071 or its associated regulations];

(2) a motor vehicle license suspension, revocation, limitation, or ineligibility pursuant to [insert citation to state DWI laws], or a motor vehicle license suspension, revocation, limitation, or ineligibility pursuant to [insert citation to provision providing for license suspension for traffic offenses], for which restoration or relief is available pursuant to [insert citation to occupational/temporary/restricted licensing provisions] [; or]

(3) ineligibility for employment with a law enforcement agency [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.] [or

(4) ineligibility pursuant to [insert references to constitutional provisions removing or suspending officeholders based on criminal charge or conviction].

Comment

Section 11 provides that neither an Order of Relief from Collateral Sanctions issued under Section 9, nor a Certificate of Restoration of Rights issued under Section 10 can relieve certain specified collateral Sanctions. Section 11(1) provides that sex offender registration requirements cannot be relieved. Section 11(2) provides that sanctions related to motor vehicle licensing cannot be relieved. In this particular area, additional methods of relief would be duplicative and perhaps inconsistent with the detailed and elaborate provisions for temporary or restrictive licenses that now exist. Section 11(3) provides that prohibitions on hiring by law enforcement agencies may not be relieved. However, that some states exclude persons with convictions from law enforcement employment does not mean they must or always do. Nothing in this Section prohibits states from permitting law enforcement agencies to consider hiring individuals with criminal records. Section 11(4) provides that sanctions imposed by the state constitution cannot be relieved by statute

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

(a) The [designated board or agency] shall give notice of the filing of a petition for an order of relief from collateral sanctions under Section 9, or for a certificate of restoration of rights under Section 10, to the office that prosecuted the offense for which the order or certificate is sought, and, if the conviction was not obtained in this state, to [the Office of the Attorney General of this state or an appropriate prosecuting office in this state]. If a petition for an order of relief from collateral sanctions is filed with the sentencing court, such notice shall be governed by the applicable rules of court. Any prosecutor so notified, and any prosecuting agency in this state, may participate in the process by which the court or the [designated board or agency] considers the petition.

(b) The court or the [designated board or agency] may order any test, report, investigation, or disclosure by the individual it believes necessary to its decision. Before issuing a certificate of restoration of rights, the [designated board or agency] shall order preparation of a report of the type required before sentencing an individual convicted of a felony. If there are disputed issues of fact or law material to the decision, the [designated board or agency] shall give the individual and the prosecutor the opportunity to submit evidence and argument on those issues before decision.

(c) The court or the [designated board or agency] may grant any relief to which the individual is entitled, even if the individual does not request that relief in the petition for an order or a certificate. The [designated board or agency] may enlarge the relief granted under an order of relief from collateral sanctions issued previously by a court or by the [designated board or agency], or under a certificate of restoration of rights issued previously by the [designated board or agency], if the individual petitions for enlargement and satisfies the requirements for the additional requested relief under the applicable provisions of Section 9(b) or Section 10(b).

(d) The [designated board or agency] may revoke an order for relief from collateral sanctions issued under Section 9, or a certificate of restoration of rights issued under Section 10, in whole or part, if it finds by a preponderance of the evidence that just cause exists for revocation. Subsequent conviction of the holder for a crime that is or would be a felony in this jurisdiction constitutes just cause. An order of revocation may be entered:

(1) sua sponte or by motion of a prosecutor in this state;

(2) after notice to the individual to whom the order or certificate was issued and any other prosecutor that has appeared in the matter; and

(3) after a hearing pursuant to rules adopted under the [insert reference to the state administrative procedure act] if requested by the individual or the prosecutor who made the motion or any prosecutor that has appeared in the matter.

(e) The [designated board or agency] may adopt rules for application, determination, modification, and revocation of orders for relief from collateral sanctions under Section 9 and certificates of restoration of rights under Section 10, in accordance with the provisions of [insert reference to state administrative procedure [act]]. The [designated board or agency] is not bound by the rules of evidence except those on privileges. The [designated board or agency] shall maintain a public record of the application, determination, modification, and revocation of orders of relief from collateral sanctions and certificates of restoration of rights. The [state criminal justice record agency] shall include issuance, modification, and revocation of orders of relief from collateral sanctions and certificates of restoration of rights in its system of records.

(f) A victim of the offense that led to the collateral sanction for which the petitioner is seeking relief has the right to receive notice of and participate in proceedings for issuance, modification, or revocation of an order for relief from collateral sanctions or a certificate of restoration of rights pursuant to [insert citation to crime victim’s act].

(g) With respect to an individual to whom an order of relief from collateral sanctions or certificate of restoration of rights has been issued, this [act] does not eliminate any legal right or remedy, or give rise to a cause of action other than a declaration that a policy imposing a collateral sanction on an individual to whom such an order or certificate has been issued is invalid or, if an individual has shown that an opportunity was denied in violation of this section, for an order that the individual’s application be reconsidered in accordance with this section.

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.

SECTION 14. SAVINGS AND TRANSITIONAL PROVISIONS.

(a) This [act] applies to collateral consequences whenever enacted or imposed, unless the law creating the collateral consequence expressly states that this [act] does not apply.

(b) This [act] does not invalidate the imposition of a collateral sanction on an individual before [the effective date of this [act]], but collateral sanctions validly imposed before [the effective date of this [act]] may be the subject of relief under this [act].

SECTION 15. EFFECTIVE DATE. This [act] takes effect . . .