D R A F T
FOR
DISCUSSION ONLY
UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
For February 29 – March 2, 2008 Drafting Committee Meeting
Without Prefatory Notes or Comments
Copyright 82007
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
____________________________________________________________________________________________
The
ideas and conclusions set forth in this draft, including the proposed statutory
language and any comments or reporter=s
notes, have not been passed upon by the National Conference of Commissioners on
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,
ANN WALSH BRADLEY,
JOHN M. CARY,
GREG J. CURTIS,
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,
HARRY D. LEINENWEBER,
MARIAN P. OPALA, State Capitol,
Room 238,
RAYMOND G. SANCHEZ,
PAULA TACKETT, Legislative
Council Service, State Capitol, Room 411,
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, 1201 Speedway, P.O. Box 210176, Tucson, AZ 85721, Reporter
EX OFFICIO
MARTHA LEE WALTERS,
JACK DAVIES,
AMERICAN BAR ASSOCIATION ADVISOR
MARGARET COLGAGE LOVE,
RODGER DREW,
THOMAS EARL PATTON,
CHARLES M. RUCHELMAN,
EXECUTIVE DIRECTOR
JOHN A. SEBERT,
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
312/450-6600
www.nccusl.org
UNIFORM
ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
TABLE
OF CONTENTS
SECTION 3. LIMITATION
ON SCOPE
SECTION 4.
IDENTIFICATION, COLLECTION, AND PUBLICATION OF LAWS REGARDING COLLATERAL
CONSEQUENCES
SECTION 5. NOTICE
OF COLLATERAL CONSEQUENCES IN PRETRIAL
PROCEEDING
SECTION 5. NOTICE
OF COLLATERAL CONSEQUENCES BEFORE GUILTY PLEA.
SECTION 6. NOTICE
OF COLLATERAL CONSEQUENCES AT SENTENCING OR
UPON RELEASE
SECTION 7.
AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION; CONSTRUCTION IN CASE OF
AMBIGUITY.
SECTION 8. EFFECT
OF OVERTURNED OR PARDONED CONVICTION[; ARREST
NOT RESULTING IN CONVICTION].
SECTION 9. ORDER
OF RELIEF FROM COLLATERAL SANCTION.
SECTION 10. ORDER
OF RELIEF FROM ALL COLLATERAL SANCTIONS.
SECTION 12. EFFECT
OF ORDER OF RELIEF FROM COLLATERAL SANCTION.
SECTION 13.
UNIFORMITY OF APPLICATION AND CONSTRUCTION
SECTION 14.
SAVINGS AND TRANSITIONAL PROVISIONS.
UNIFORM
ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
SECTION 1.
SHORT TITLE. This [act] may be cited as the Uniform Act on
Collateral Consequences of Conviction.
SECTION 2.
DEFINITIONS. In this [act]:
(1) “Collateral sanction” means a penalty,
disability, or disadvantage, however denominated, 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.
(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 or juvenile adjudication for a felony, misdemeanor, or other
offense.
(3) “Collateral consequence” means a collateral
sanction or a disqualification.
(4) “Felony” means a criminal offense in any
jurisdiction that would be a felony under the law of this state.
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 of law 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
(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 prepared.
(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)
Noncompliance with this section does not give rise to a cause of action for
relief from a collateral consequence or for damages.
ALTERNATIVE A
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 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;
$ prohibiting
you from voting or possessing a firearm; and
$ if you are
not a
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 shall not give rise to a cause of action for
relief from a collateral consequence or for damages.
ALTERNATIVE B
(a) Before
accepting a plea of guilty to an offense, the court shall provide the following
notice to the individual:
If you
plead guilty, you may suffer additional legal consequences beyond the
imprisonment, [probation] [insert jurisdiction’s alternative term for
probation], [insert term for post-incarceration supervision] and fines that we
have discussed. 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;
$ prohibiting
you from voting or possessing a firearm; and
$ if you are
not a
The court shall not accept a guilty plea without confirming
on the record that the individual has received and understood the notice
(b)
Noncompliance with this section does not give rise to a cause of action for
relief from a collateral consequence or for damages.
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 a collection
of relevant laws can be found. Notice
substantially similar to the notice set forth in Section 5(a) is sufficient,
except that it must also include contact information for any agencies, groups,
or persons that offer assistance to individuals seeking relief from collateral
sanctions and disqualifications.
(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 between [30], and, if practicable, [10] days
before release.
(c)
Noncompliance with this section does not give rise to a cause of action for
relief from a collateral consequence or for damages.
(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 or authorizes a collateral sanction
or imposes or authorizes a disqualification, it shall be construed as
authorizing or imposing a disqualification.
[(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) 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.]
(a) Except
as provided in Section 12(d), an individual convicted of an offense may apply
for an order of relief from one or more collateral sanctions to which the
individual is or expects to be subject.
The application must specify the collateral sanctions from which relief
is sought. The individual shall serve a
copy of the application on the agency that prosecuted the individual, which may
appear and participate. If a conviction
giving rise to collateral sanctions in this state was obtained in another
state, the individual shall also serve the [appropriate prosecuting agency in
this state with jurisdiction where the court is located], which may appear and
participate.
(b) An
order under this section may be issued by a court of this state, but only at
the time of sentencing, or by the [designated agency] at any time.
(c) Until
five years has elapsed since sentencing the individual for any felony, the
individual may apply for relief from one or more collateral sanctions related
to relating to employment, education, housing, public benefits or occupational
licensing. After five years has elapsed
since sentencing for any felony, the individual may apply for relief from one
or more collateral sanctions of any type.
(d) The
court or the [designated agency] must order any test, investigation or
disclosure by the individual it deems necessary before ruling on an
application, which may include preparation of a report of the type required
before sentencing an individual convicted of a felony. The court or [designated agency] shall hold a
hearing before deciding an application if requested by the individual or the
prosecutor.
(e) The
court or [designated agency] may issue an order if, after reviewing the record,
including the individual’s criminal history, and any response, it finds by a
preponderance of the evidence that granting relief does not pose an
unreasonable risk to the safety or welfare of the public or any individual, and
may assist the individual in living a law-abiding life, including obtaining or
maintaining employment, or reentering the community. In addition, if less than five years has
elapsed since the individual was sentenced for any felony, the court or
[designated agency] may issue an order only if it finds that the individual has
substantial need for the relief requested in order to live a law-abiding life.
(f) An
order of relief from collateral sanction may be modified upon motion of the
individual.
(a) An
individual who is a resident of this state, convicted of an offense in this
state or in another jurisdiction, may apply to the [designated agency] for an
order of relief from all collateral sanctions, except for collateral sanctions
listed in Section 12(d). The [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. These prosecutors may appear and
participate. To obtain an order of
relief from all collateral sanctions, the individual must establish by a
preponderance of the evidence that:
(1)
at least [five] years have elapsed since the individual’s most recent
conviction 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 the order the individual has been
engaged in, or seeking to engage in, a lawful occupation or activity, including
employment, training, education, or rehabilitative programs or, if the
individual is retired or disabled, that the individual has a lawful source of
support;
(3)
the individual complied with the terms of any criminal sentence, or that
failure to comply is justified or involuntary;
(4)
no criminal charges are pending against the individual; and
(5)
granting the order would not pose an unreasonable risk to the safety or welfare
of the public or any individual.
(b) Before
issuing an order relieving all collateral sanctions, the [designated agency]
shall order the preparation of, and review, a report of the type required
before sentencing an individual convicted of a felony, and may also order any
other test, investigation or disclosure by the individual it considers
necessary. The [designated agency] shall
hold a hearing before deciding the application if requested by the individual or
the prosecutor.
(c) If the
requirements of subsection (a) are met, and the [designated agency] finds no
reason to deny the application, the [designated agency] may issue an order
relieving all collateral sanctions, which shall state that it does not relieve
collateral sanctions listed in Section 12(d). The order must identify the
offenses of which the individual was convicted.
(a) [insert citation to state’s rules of
evidence] (other than with respect to privileges) do not apply to proceedings
under Sections 9 or 10. The [designated
agency] may adopt rules for the application, determination, modification and
revocation of orders under Sections 9 and 10 under the provisions of [insert
reference to state administrative procedure act]. The [designated agency] shall maintain a
public record of the application, determination, modification and revocation of
orders under Section 9 or 10. The [state criminal justice record agency] may
include issuance and revocation of orders under Sections 9 and 10 in its system
of records.
(b) The
[designated agency] may revoke an order under Section 9 or Section 10: 1) after
notice to the holder of the order and the agency that prosecuted the holder; 2)
after a hearing pursuant to rules adopted under the [insert reference to the
state administrative procedure act] if requested by the holder of the order or
the agency that prosecuted the holder; 3) if it finds by a preponderance of the
evidence that just cause exists to revoke the order. Subsequent conviction of the holder for a
crime that would be a felony in this jurisdiction constitutes just cause.
(c) A
crime victim shall have the right to receive notice of and participate in proceedings
under Sections 9 or 10 pursuant to [insert reference to crime victim’s act].
(a) In
this section, “state” means:
(1)
the state acting directly and through its departments, agencies, officers, or
instrumentalities, including municipalities, political subdivisions,
educational institutions, boards, or commissions, or their employees [.] [;
and]
[(2)
government contractors (including subcontractors) made subject to this section
by contract, law other than this act, or ordinance.]
(b) Except
as otherwise provided in subsection (d), the state may not impose a collateral
sanction which is the subject of an unrevoked order of relief from collateral
sanction or order of relief from all collateral sanctions.
(c) The
state may impose a disqualification on an individual holding an order of relief
from a collateral sanction covering the opportunity at issue or an order of
relief from all collateral sanctions if 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 perform any investigation it considers necessary, and may
require an individual applying for an opportunity to furnish copies of court
records or other relevant information.
In determining whether the individual poses an unreasonable risk, the
decisionmaker 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;
(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 a certificate of relief
from collateral sanction, 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.
(d) An
order issued under Section 9 or 10 does not remove an otherwise applicable:
(1)
sex offender registration requirement,
(2)
motor vehicle license suspension, revocation or ineligibility based on conviction
of operating a motor vehicle under the influence of alcohol or drugs; or
(3)
employment restriction imposed by 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.] [However,
law enforcement agencies in their discretion may consider employment
applications from individuals with criminal records.] [or
(4)
ineligibility pursuant to [insert references to constitutional provisions
removing or suspending officeholders based on criminal charge or conviction.]]
(e)
Issuance of an order under Section 10 renders the underlying conviction(s)
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 with an individual, if the decision maker had
knowledge of the order at the time of the alleged negligence or other
fault. An order under Section 9 or 10
may be introduced as evidence of a decisionmaker’s due care in deciding to
hire, retain, license, lease to, admit to a school or program, or otherwise
transact with the individual holding the order, if the decisionmaker had
knowledge of the order at the time of the alleged negligence or other
fault..
(f) With
respect to an individual holding an order of relief from collateral sanction or
an order of relief from all collateral sanctions, this section does not
eliminate any legal right or remedy, or give rise to a cause of action for
damages or relief other than a declaration that a policy 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.
(a) This
act applies to collateral consequences whenever enacted, unless the law
creating the collateral consequence expressly states that this act does not
apply.
(b) [if
any]
SECTION 15.
EFFECTIVE DATE. This [act] takes effect . . .