D R A F T
FOR
DISCUSSION ONLY
UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
May
16, 2009 Draft for Conference Call
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
May 16, 2009
DRAFTING
COMMITTEE ON UNIFORM COLLATERAL
CONSEQUENCES
OF CONVICTION ACT
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,
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, 680 Lake
Shore Drive, Apt. 1412, Chicago, IL 60604
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
COLLATERAL CONSEQUENCES OF CONVICTION ACT
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 CONSEQUENCES AT SENTENCING
OR UPON RELEASE
SECTION 7.
AUTHORIZATION REQUIRED FOR COLLATERAL SANCTION; DISQUALIFICATION;
AMBIGUITY.
SECTION 9. ORDER
OF LIMITED RELIEF.
SECTION 10.
CERTIFICATE OF RESTORATION OF RIGHTS
SECTION 11.
SANCTIONS NOT SUBJECT TO ORDER OF LIMITED RELIEF OR 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 COLLATERAL CONSEQUENCES OF CONVICTION ACT
SECTION 1. SHORT TITLE. This [act] may be
cited as the Uniform Collateral Consequences of Conviction Act.
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) “Decision-maker” means 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 [act] by contract, by law other than this [act], or ordinance].
(4) “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.
(5) “Offense”
means a felony, misdemeanor, or [insert term for lesser offenses and other
adjudications in enacting state] under the law of this state, another state, or
the
(6)
“Person” means an individual, corporation, business trust, estate, trust, partnership,
limited liability company, association, joint venture, public corporation, government
or governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity.
SECTION
3. LIMITATION ON SCOPE.
(a) This [act] does not provide a
basis for:
(1) invalidating a plea,
conviction, or sentence;
(2)
a cause of action for money damages; or
(3)
a claim for relief from or defense to the application of a collateral
consequence based on a failure to comply with Section 4, 5, or 6.
(b)
This [act] does not affect:
(a) the duty an
individual’s attorney owes to the individual;
(b)
a claim or right of a victim of an offense; or
(c)
a right or remedy available to an individual convicted of an offense under law
other than this [act].
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 sentence, conviction, or 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 prepared or 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 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 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 longer 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 [insert Internet web address of
the collection of laws published under Section 4(c)].
SECTION 6. NOTICE OF
COLLATERAL CONSEQUENCES AT SENTENCING OR UPON RELEASE.
(a) An
individual convicted of an offense must be given notice as provided in
subsection (b):
(1) that collateral consequences
may apply because of the conviction;
(2) of the Internet web address
of the collection of laws published under Section 4(c);
(3) that there may be
ways to obtain relief from collateral consequences;
(4) of contact
information for government or nonprofit agencies, groups, or organizations, if
any, offering assistance to individuals seeking relief from collateral consequences;
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 subsection (a) at
sentencing. In addition, if an
individual is sentenced to imprisonment or other incarceration, the officer or
agency releasing the individual shall provide the information in subsection (a)
not more than [30] days, and, if practicable, at least [10] days before
release.
(a) A collateral
sanction may be imposed only by statute or ordinance, or by a rule authorized
by law and adopted in accordance with [insert citation to State Administrative
Procedure Act or any other applicable law].
(b) In
deciding whether to impose a disqualification on an individual, a decision-maker
shall undertake an individual assessment to determine whether the benefit or
opportunity at issue should be granted. In
making that decision, a decision-maker may not consider the fact of a
conviction, but may consider the particular facts and circumstances involved in
the offense if they are substantially related to the benefit or opportunity at
issue. The decision-maker shall also
consider other relevant information, including whether the individual has been granted
relief such as an order of limited relief or a certificate of restoration of
rights.
(c) A law creating a collateral
consequence that is ambiguous as to whether it imposes a collateral sanction or
authorizes a disqualification must be construed as authorizing a
disqualification.
(a) For purposes of authorizing or imposing
collateral consequences in this state, a conviction for an offense in a court of
another state or the
(b) For purposes
of authorizing or imposing collateral consequences in this state, a juvenile
adjudication in another state or the
(c) A conviction that is reversed,
overturned, or otherwise vacated by a court of competent jurisdiction of this
state, another state, or the United States on grounds other than rehabilitation
or good behavior may not serve as the basis for authorizing or imposing a
collateral consequence in this state.
(d) A pardon issued by another state
or the United States has the same effect for purposes of authorizing, imposing,
and relieving collateral consequences in this state as it has in the issuing
jurisdiction.
ALTERNATIVE A
(e)
A conviction that has been expunged, sealed, annulled, set aside, or
otherwise vacated by a court of competent jurisdiction of another state or the
United States on grounds of rehabilitation or good behavior, or for which civil
rights were restored pursuant to statute, has the same effect for purposes of
authorizing, imposing, and relieving collateral consequences in this state as
it has in the jurisdiction of conviction, except that vacation or restoration
of civil rights does not relieve collateral consequences applicable under the
law of this state for which relief could not be granted under Section 11, or
for which relief was expressly withheld by the court order or by the law of the
jurisdiction that vacated the conviction.
An individual convicted in another jurisdiction may seek relief under
Section 9 or 10 from any collateral consequence for which relief was not
granted in the issuing jurisdiction, other than those listed in Section 11, and
the [designated board or agency] shall consider that the conviction was vacated
or civil rights restored in deciding whether to issue an order of limited
relief or certificate of restoration of rights.
ALTERNATIVE B
(e) A conviction that has been expunged, sealed,
annulled, set aside, or otherwise vacated by a court of competent jurisdiction
of another state or the
(f) A charge or prosecution in any
jurisdiction that has been finally terminated without a judgment of conviction
and imposition of sentence based on participation in a deferred prosecution or
diversion program may not serve as the basis for authorizing or imposing a
collateral consequence in this state.
This subsection does 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 or
prosecution.
(a) 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 the:
(1)
sentencing court at or before sentencing; or
(2) [designated board or agency]
at any time after sentencing.
(b) Except as otherwise provided in Section 11, the court or the [designated board or agency] may issue an order of limited relief relieving one or more of the collateral sanctions described in subsection (a) if, after reviewing the record, including the individual’s criminal history, any filing by a prosecutor or victim under Section 14, and any other relevant evidence, 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) A decision-maker may consider the conduct
underlying a conviction in the same manner as provided in Section 7(b).
(d) The order of
limited relief must specify:
(1)
the particular collateral sanction from which relief is granted; and
(2)
any restrictions imposed pursuant to Section 12(a).
(e) Issuance of an order of limited relief relieves a collateral sanction to the extent provided in the order.
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 not sooner than [five] years after the individual’s most recent conviction of a felony [or
misdemeanor] in any jurisdiction, or not sooner than [five] years after 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 issue a certificate of restoration of rights if after
reviewing the record, including the individual’s criminal history, any filing
by a prosecutor or victim under Section 14, and any other relevant evidence, it
finds the individual has established by a preponderance of the evidence 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 the individual otherwise
has a lawful source of support;
(2) the individual is not in violation of the
terms of any criminal sentence, or that any failure to comply is justified, excused,
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 Section
12(a).
(d) Issuance of a certificate of restoration of rights relieves all collateral sanctions, except those listed in Section 11 and any others specifically excluded in the certificate. A decision-maker may consider the conduct underlying the conviction in the same manner as provided in Section 7(b).
SECTION 11. SANCTIONS NOT SUBJECT TO ORDER OF LIMITED
RELIEF OR CERTIFICATE OF RESTORATION OF RIGHTS. An order of limited
relief or certificate of restoration of rights may not be issued to relieve the
following collateral 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 pursuant to [insert
references to laws restricting employment of convicted individuals by law
enforcement agencies including the attorney general, prosecutor’s office,
police department, sheriff’s department, the state police, or the department of
corrections[.] [; or
(4) ineligibility pursuant to [insert references
to constitutionally created collateral sanctions which the legislature has no
power to remove, such as those removing or suspending officeholders based on
criminal charge or conviction].
SECTION 12. ISSUANCE, MODIFICATION,
AND REVOCATION OF ORDER OF LIMITED RELIEF AND CERTIFICATE OF RESTORATION OF
RIGHTS.
(a) When a
petition is filed under Section 9 or 10, including a petition for enlargement
of an existing order of limited relief or certificate of restoration of rights,
the [designated board or agency] shall notify the office that prosecuted the
offense giving rise to the collateral consequence from which relief is sought
and, if the conviction was not obtained in a court of this state, the [Office
of the Attorney General of this state or an appropriate prosecuting office in
this state]. The court or [designated
board or agency] may issue an order or certificate subject to restriction,
condition, or additional requirement. When
issuing, denying, modifying, or revoking an order or certificate, the
[designated board or agency] may impose conditions for reapplication.
(b) The [designated board or agency] may restrict
or revoke an order of limited relief or certificate of restoration of rights it
previously issued or an order issued by a court in this state if it finds just
cause by a preponderance of the evidence.
Just cause includes subsequent conviction of the holder for a felony in
this state, or for an offense in another jurisdiction that is deemed a felony in
this state under Section 8(a). An order
of restriction or revocation may be issued:
(1)
on motion of the [designated board or agency] or the office of the prosecutor
that obtained the conviction, or a government agency designated by that
prosecutorial office;
(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.
(c) The [designated board or agency] shall order
any test, report, investigation, or disclosure by the individual it reasonably believes
necessary to its decision to issue, modify or revoke an order of limited relief
or certificate of restoration of rights.
If there are material disputed issues of fact or law, the individual and
any prosecutor notified under subsection (a) or another prosecutorial agency
designated by a prosecutor notified under subsection (a) shall have the
opportunity to submit evidence and be heard on those issues.
(d) The [designated board or agency] shall
maintain a public record of the issuance, modification, and revocation of
orders of limited relief and certificates of restoration of rights. The criminal history record system of the [state
criminal justice record agency] shall include issuance, modification, and
revocation of orders and certificates.
[(e) The
[designated board or agency] may adopt rules for application, determination,
modification, and revocation of orders of limited relief and certificates of
restoration of rights, in accordance with the provisions of [insert reference
to state administrative procedure [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 or a certificate
of restoration of rights may be introduced by a person as evidence of the person’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 person knew of the order or
certificate at the time of the alleged negligence or other fault.
SECTION
14. VICTIM’S RIGHTS. A victim of an
offense may participate in proceedings for issuance, modification, and
revocation of orders of limited relief and certificates of restoration of
rights [in the same manner as at a sentencing proceeding pursuant to [insert
citation to state crime victim’s act]] [to the extent permitted by rules
adopted by the [designated board or agency]].
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 . . .