D R A F T
FOR
DISCUSSION ONLY
UNIFORM ACT ON COLLATERAL CONSEQUENCES OF CONVICTION
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
Draft
for March 6-8, 2009 Meeting
Without Prefatory Notes or Comments
Copyright 82009
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
February 24, 2009
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, 5861 N.
Paseo Niquel, Tucson, AZ 85718
H. LANE KNEEDLER,
HARRY D. LEINENWEBER,
MARIAN P. OPALA, State Capitol,
Room 238,
RAYMOND G. SANCHEZ,
ALEXANDRA T. SCHIMMER, Office of
the Ohio Attorney General, 30 E. Broad Street, 17th Flr., Columbus, OH 43215-3428
PAULA TACKETT, Legislative
Council Service, State Capitol, Room 411, Santa Fe, NM 87501
MICHELE L. TIMMONS, Office of
the Revisor of Statutes, 700 State Office Bldg., 100 Rev. Dr. Martin Luther
King Jr. Blvd., St. Paul, MN 55155
JACK CHIN, University of Arizona, 1201 Speedway, P.O. Box 210176, Tucson, AZ 85721, Reporter
EX OFFICIO
MARTHA LEE WALTERS,
JACK DAVIES,
AMERICAN BAR ASSOCIATION ADVISOR
MARGARET COLGATE 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 6. NOTICE
OF COLLATERAL SANCTIONS AND DISQUALIFICATIONS
AT SENTENCING OR UPON RELEASE
SECTION 7.
AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION; CONSTRUCTION IN CASE OF
AMBIGUITY.
SECTION 9. ORDER
OF LIMITED RELIEF FROM COLLATERAL SANCTIONS.
SECTION 10.
CERTIFICATE OF RESTORATION OF RIGHTS
[SECTION 13.
RELIANCE ON ORDER OR CERTIFICATE AS EVIDENCE OF
DUE CARE]
SECTION 15.
UNIFORMITY OF APPLICATION AND CONSTRUCTION
SECTION 16.
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 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 for an 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 for an offense.
(4) “Offense”
means a felony, misdemeanor, or [insert term for lesser offenses and other
adjudications in enacting state], when referring to the law of this state, or,
when referring to the law of another state or the
SECTION
3. LIMITATION ON SCOPE. This
[act] does not:
(1)
provide a basis for:
(A) invalidating a
conviction or plea;
(B)
a cause of action for money damages; or
(C)
a claim for relief from or defense to the application of a collateral
consequence based on non-compliance with Section 4, 5, or 6; or
(2)
affect:
(A) the duty an
individual’s attorney owes to the individual;
(B)
any claim or right held by a victim of an offense; or
(C) rights or relief under
law other than this [act] available to an individual convicted of an offense.
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 number of days] 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) shall update or
cause to be updated the collection within [specify period] after each [regular
session] of the [legislature]; and
(4) in complying with paragraphs
(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,
Pub. L. 110-177.
(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 not imposing 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 them, enacted or adopted after the collection
was last updated.
(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 within [insert number]
of days after it is created or updated.
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 information substantially similar to the
following notice:
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], periods of [insert term for post-incarceration supervision], and
fines. These consequences may include:
$ being unable to get or keep some licenses,
permits, or jobs;
$ being unable to get or keep benefits such as
public housing or education;
$ receiving a higher sentence if you are
convicted of another offense in the future;
$ having the government take your property; and
$ being unable to vote or possess a firearm.
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 indicating where the collection described in Section 4(c) can be found]].
SECTION 6. NOTICE OF
COLLATERAL SANCTIONS AND DISQUALIFICATIONS AT SENTENCING OR UPON RELEASE.
(a) An
individual convicted of an offense must be given notice:
(1) that collateral
sanctions and disqualifications may apply because of the conviction;
(2) of where in the
Internet the collection of relevant laws published under Section 4(c) can be found;
(3) that there may be
ways to obtain relief from collateral sanctions and disqualifications;
(4) of contact
information for government or nonprofit agencies, groups, or organizations, if
any, offering assistance to individuals seeking relief from collateral
sanctions and disqualifications, and
(5) of when an individual convicted of a crime may
vote under this state’s law.
(b) The [designated government
agency or official] shall provide the information in Paragraph (a) at sentencing
if an individual is not sentenced to imprisonment or other incarceration. If an individual is sentenced to imprisonment
or other incarceration, the officer or agency releasing the individual shall provide
the information in Paragraph (a) not more than [30] days, and, if practicable,
at least [10] days before release.
(a) The state
acting directly or through its departments, agencies, officers, or instrumentalities,
including municipalities, political subdivisions, educational institutions,
boards, or commissions, or their employees may impose a collateral sanction only
pursuant to statute or ordinance, or pursuant to a rule authorized by law and
adopted in accordance with [insert citation to State Administrative Procedure
Act or any other applicable law].
(b) If a law is ambiguous as to
whether a collateral consequence is a collateral sanction or disqualification,
it must be construed as a disqualification.
(a) For purposes of imposing or authorizing
collateral consequences, a conviction for an offense in a court of
another state or the United States is deemed a conviction of the offense in
this state with identical elements. If
there is no offense in this state with identical elements, the conviction is
deemed a conviction for the most serious offense in this state which is
necessarily established by the elements of the offense of conviction. An offense graded below a misdemeanor in the
jurisdiction of conviction may not be deemed a conviction of a crime in this
state, and an offense graded as a misdemeanor in the jurisdiction of conviction
may not be deemed a felony in this state.
(b) A conviction that is reversed,
overturned, set aside, or otherwise vacated by order of a court of competent
jurisdiction of this state, another state, or the United States on grounds
other than rehabilitation or good behavior, is not deemed a conviction in this
state and is not the basis for a collateral consequence in this state.
(c) A pardon issued by another state
or the United States, or an order of a court of competent jurisdiction of
another state or the United States expunging, sealing, annulling, setting aside,
or otherwise vacating a conviction on grounds of rehabilitation or good
behavior, has the same effect for purposes of imposing, authorizing, and
relieving collateral consequences in this state as in the issuing jurisdiction.
(d) A charge in any jurisdiction
that has been finally terminated without a judgment of conviction and imposition
of sentence, based on the defendant’s participation in a deferred prosecution
or diversion program, is not deemed a conviction in this state. This subsection shall not affect the validity
of any restrictions or conditions imposed by law as part of participation in
the deferred prosecution or diversion program, either before or after the
termination of the charge.
(a) Except as provided in
Section 11, an individual convicted of an offense may petition for an order of limited
relief from one or more collateral sanctions related to employment, education,
housing, public benefits, or occupational licensing. The petition may be presented to:
(1)
the sentencing court at or before sentencing; or
(2) the [designated board or agency] at any time
after sentencing.
(b) The court or the [designated board or agency] may grant a petition requesting relief, and issue an order of limited relief, from one or more of the collateral sanctions described in subsection (a) if, after reviewing the record, including the individual’s criminal history and any other evidence that would constitute a reasonable ground warranting {grant or} denial of the petition, and any filing by a prosecutor or victim, it finds the individual has established by a preponderance of the evidence that:
(1) granting the petition will materially
assist the individual in obtaining or maintaining employment, education,
housing, public benefits, or occupational licensing;
(2) the individual has
substantial need for the relief requested in order to live a law-abiding life;
and
(3) granting the petition
would not pose an unreasonable risk to the safety or welfare of the public or
any individual.
(c) An order of limited relief from collateral
sanctions must specify:
(1)
the particular collateral sanctions from which relief is granted; and
(2)
any restrictions imposed pursuant to Section 12(d).
(d) An order of limited relief relieves a
collateral sanction to the extent provided in the order, permitting the
individual to be considered for the relevant employment, education, housing,
occupational licensing, or public benefit on the same basis as any other
applicant, but the decisionmaker may consider the conduct resulting in the
conviction if directly related to the opportunity or benefit sought.
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 relieving collateral sanctions [five] years after the
individual’s most recent conviction of a felony [or misdemeanor] in any
jurisdiction, or the individual’s release from confinement pursuant to a
criminal sentence in any jurisdiction, whichever is later.
(b)
Except as otherwise provided in Section 11, the [designated board or
agency] may grant a certificate of restoration of rights if it finds that
(1) the individual is 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;
(2) the individual has not violated the terms of
any criminal sentence, or that any failure to comply is justified, involuntary,
or insubstantial;
(3) no criminal charges are pending against the
individual; and
(4) granting the petition would not pose an unreasonable risk to
the safety or welfare of the public or any individual.
(c)
A certificate of restoration of rights must specify any restrictions
imposed and collateral sanctions from which relief has not been granted under
12(d).
(d)
A certificate of restoration of rights relieves all collateral
sanctions, except those specified in the certificate and those listed in
Section 11, permitting
the individual to be considered for a benefit or opportunity on the same basis
as any other applicant, but the decision-maker may consider the conduct
resulting in the conviction if it is determined to be so closely related to the
opportunity or benefit at issue that it renders the individual unqualified. In making this
determination, the decision-maker 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 limited relief from collateral sanctions, a
certificate of restoration of rights, a pardon, or other relief; and
(7) whether other individuals who engaged in
similar prohibited conduct, whether or not convicted, have been or would be
excluded on the ground that they present an unreasonable risk.
(e) 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.
SECTION 11. SANCTIONS NOT SUBJECT TO ORDER OF LIMITED
RELIEF FROM COLLATERAL SANCTIONS OR CERTIFICATE OF RESTORATION OF RIGHTS. An order of limited 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. Section 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, and 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.]
SECTION 12. PROCEDURES FOR
ISSUANCE, MODIFICATION, AND REVOCATION, OF ORDERS OF LIMITED 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 limited 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 limited relief from collateral sanctions
is filed with the sentencing court, applicable rules of court govern notice. Any prosecutor so notified, and any other prosecuting
agency in this state, may participate in the process by which the court or the
[designated board or agency] considers the petition.
(b) 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. 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. If there are disputed issues of fact or law
material to the decision, the individual and the prosecutor shall have the
opportunity to submit evidence and be heard 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 did not request that relief.
The [designated board or agency] may modify an order of limited relief
from collateral sanctions issued previously by a court or by the [designated
board or agency], or a certificate of restoration of rights issued previously
by the [designated board or agency] on petition of the individual or the
state. A petition for additional relief
not included in an earlier order or certificate may be granted if the
individual satisfies the requirements for the additional relief under Section
9(b) or Section 10(b).
(d) The
court or [designated board or agency] may grant relief subject to restriction, condition
or additional requirement. If relief is
denied, the [designated board or agency] may condition reapplication on
satisfaction of additional requirements.
(e) The [designated board or agency] may revoke
an order for relief from collateral sanctions, or a certificate of restoration
of rights, in whole or part, if it finds by a preponderance of the evidence
that just cause exists for revocation. Just
cause includes subsequent conviction of the holder for a felony in this state,
or for an offense in another jurisdiction that would be a felony in this state under
section 8(a). 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.
(f) The [designated board or agency] may adopt
rules for application, determination, modification, and revocation of orders
for relief from collateral sanctions and certificates of restoration of rights,
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 in its system of records issuance,
modification, and revocation of orders of limited relief from collateral
sanctions and certificates of restoration of rights.
(g) An individual holding an order of limited
relief from collateral sanctions or a certificate of restoration of rights may
seek a declaration that a policy imposing a collateral consequence is invalid
because in conflict with this [act]. An
individual who shows that an opportunity was denied in violation of this [act]
may seek an order that the individual’s application be reconsidered in
accordance with this [act].
[SECTION 13.
RELIANCE ON ORDER OR CERTIFICATE AS EVIDENCE OF DUE CARE. In a
judicial or administrative proceeding alleging negligence or other fault, an
order of limited relief from collateral sanctions or a certificate of
restoration of rights may be introduced by a decisionmaker as evidence of the
decisionmaker’s due care in 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 order was issued, if the decisionmaker
had knowledge of the order at the time of the alleged negligence or other
fault.]
SECTION 14. VICTIM’S RIGHTS. A victim of an offense shall has the right to be notified
of, and participate in, proceedings for issuance, modification, and revocation
of orders of limited relief from collateral sanctions and certificates of
restoration of rights [pursuant to [insert citation to state crime victim’s
act]].
SECTION 15. 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 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 a collateral sanction
validly imposed before [the effective date of this [act]] may be the subject of
relief under this [act].
SECTION 17. EFFECTIVE DATE. This [act] takes
effect . . .