Serving People from Arrest to Reintegration
http://www.law.upenn.edu/bll/ulc/ucsada/2005NovMtgDraft.htm
D R A F T
FOR DISCUSSION ONLY
UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
For November 4-6, 2005 Drafting Committee Meeting
WITH PREFATORY NOTE AND COMMENTS
Copyright ©2005
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 reporters notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.
DRAFTING COMMITTEE ON UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Uniform Collateral Sanctions and Disqualifications Act consists of the following individuals:
RICHARD T. CASSIDY, 100 Main St., P.O. Box 1124, Burlington, VT 05402,Chair
ANN WALSH BRADLEY, P.O. Box 1688, Madison, WI 53701-1688
JOHN M. CARY, 1201 Third Ave., #2812, Seattle, WA 98101
GREG J. CURTIS, P.O. Box 2084, Sandy, UT 84091
JESSICA FRENCH, Division of Legislative Services, 910 Capitol St., 2nd Floor, General Assembly Building, Richmond, VA 23219
ROGER C. HENDERSON, University of Arizona, 1201 Speedway, P.O. Box 210176, Tucson, AZ 85721-0176, Enactment Plan Coordinator
H. LANE KNEEDLER, 901 E. Byrd Street, Suite 1700, Richmond, VA 23219
HARRY D. LEINENWEBER, U.S. District Court, 219 S. Dearborn St., Suite 1946, Chicago, IL 60604
MARIAN P. OPALA, Supreme Court, State Capitol, Room 238, Oklahoma City, OK 73105
RAYMOND G. SANCHEZ, P.O. Box 1966, Albuquerque, NM 87103
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
HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President
JACK DAVIES, 687 Woodridge Dr., Mendota Heights, MN 55118, Division Chair
AMERICAN BAR ASSOCIATION ADVISOR
ROBERT M.A. JOHNSON, 2100 Third Avenue, Anoka, MN 55303, American Bar Association Advisor
THOMAS EARL PATTON, 1747 Pennsylvania Ave. NW, Suite 300, Washington, DC 20006, American Bar Association Section Advisor
CHARLES M. RUCHELMAN, 1775 Pennsylvania Ave. NW, Washington, DC 20006-4605, American Bar Association Section Advisor
EXECUTIVE DIRECTOR
WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382, Executive Director
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
Chicago, Illinois 60611
312/915-0195
UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATIONS ACT
TABLE OF CONTENTS
SECTION 3. COLLECTION OF COLLATERAL SANCTIONS AND
DISQUALIFICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. ADVISEMENT AT GUILTY PLEA
SECTION 5. ADVISEMENT UPON RELEASE OR AT SENTENCING
UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATION ACT
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. 1 A growing literature deals with reentry. See, e.g., Report of the Re-Entry Policy Council: Chartingthe Safe and Successful Return of Prisoners of the Community (2005); Reginald A. Wilkinson,ed., Reentry Best Practices: Directors Perspectives (Association of State CorrectionalAdministrators 2004); Marc Mauer & Meda Chesney-Lind, eds., Invisible Punishment: TheCollateral Consequences of Mass Imprisonment (New Press 2002); Christopher Mele & TheresaA. Miller, eds., Civil Penalties, Social Consequences (Routledge 2005); Jeremy Travis & MichelleWaul, eds., Prisoners Once Removed: The Impact of Incarceration and Reentry on Children,Families and Communities (Urban Institute Press 2005); Jeremy Travis, But They All Come Back:Facing the Challenges of Prisoner Reentry (Urban Institute Press 2005).
Close In a trend showing little sign of abating, the U.S. prison population has increased dramatically since the early 1970s.
2 In November, 2004, the Bureau of Justice Statistics reported that the rate of grown of the national prisonsystem had diminished to 2.1%, which was less than the average annual grown rate of 3.4 % since 1995, butstill positive. Paige M. Harrison & Allen J. Beck, Prisoners in 2003, at 1, Bureau of Justice StatisticsBulletin (Nov. 2004, NCJ 205335).
Close 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 would serve prison time during their lives
3 Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, at 1, Bureau ofJustice Statistics Special Report (Aug. 2003, NCJ 197976).
Close --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 4 million adults were on probation on December 31, 2003, almost twice as many as the combined number on parole, in jail or in prison. 4 Laura E. Glaze & Seri Palla, Probation and Parole in the United States, 2003, at 1, Bureau of JusticeStatistics Bulletin (July 2004, NCJ 205336).
Close
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 must successfully reenter society or be at risk for recidivism. Although no one supports coddling criminals, 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 offender could have contributed to the economy.
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. 5 See, e.g., Bureau of Justice Statistics, Report of the National Task Force on Privacy, Technology andCriminal Justice Information (Aug. 2001).
Close Apart from self-esteem and informal social stigma, a criminal conviction negatively affects an individuals legal status. For many years, a person convicted of, say, a drug felony, lost his right to vote for a period of time or for life,
6 See Jeff Manza & Chris Uggen, Locked Out: Felon Disenfranchisement and AmericanDemocracy (Oxford forthcoming).
Close could not possess a firearm,
7 18 U.S.C. § 922(g).
Close and was barred from service in the military
8 10 U.S.C. § 504.
Close and on juries, state and federal, civil and criminal.
9 See Brian Kalt, The Exclusion of Felons from Jury Service, 53 Am. U. L. Rev. 65 (2003).
Close If a non-citizen, the convicted person could be deported.
10 See Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why HardLaws Make Bad Cases, 113 Harv. L. Rev. 1889 (2000).
Close 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 because and only because of conviction of a criminal offense.
In recent years, collateral sanctions have been increasing. To identify just some of those applicable to drug felons under federal law, 1987 legislation made drug offenders ineligible for certain federal health care benefits; 11 42 U.S.C. § 1320a-7(a)(3), added by Pub. L. 100-93, Aug. 18, 1987, 101 Stat 680.
Close a 1991 law required states to revoke some drug offenders drivers licenses or lose federal funding,
12 23 U.S.C. § 159, added by Pub. L.102-143, Title III, § 333(a), Oct. 28, 1991, 105 Stat. 944.
Close in 1993, Congress made drug offenders ineligible to participate in the National and Community Service Trust Program.
13 42 U.S.C. § 12602(e), added by Pub. L. 103-82, Sept. 21, 1993, 107 Stat 785.
Close In 1996, Congress provided that persons convicted of drug offenses would automatically be ineligible for certain federal benefits;
14 21 U.S.C. § 862a, added by Pub.L. 104-193, Title I, § 115, Aug. 22, 1996, 110 Stat. 2180.
Close a year later, Congress rendered them ineligible for the Hope Scholarship Tax Credit.
15 26 U.S.C. § 25A(b)(2)(D), added by Pub. L. 105-34, Aug. 5, 1997, 111 Stat 788.
Close In 1998, persons convicted of drug crimes were made ineligible for federal educational aid
16 20 U.S.C. § 1091(r), added Pub.L. 105-244, Title IV, § 483(a) to (f)(1), Oct. 7, 1998, 112 Stat. 1735.
Close and for residence in public housing.
17 42 U.S.C. § 13662, Pub.L. 105-276, Title V, § 577, Oct. 21, 1998, 112 Stat. 2640.
Close In addition, 1988 legislation authorized state and federal sentencing judges to take away eligibility for federal public benefits.
18 21 U.S.C. § 862, added by Pub. L. 100-690, Title V, § 5301, Nov. 18, 1988, 102 Stat. 4310.
Like Congress, state legislatures have also been attracted to regulating convicted persons. 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. 19 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).
Close These laws limit the ability of convicted persons 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.
A second major development is the availability to the all arms of government and the general public, via Internet, of aggregations of public record information, including criminal convictions, about all Americans. 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. 20 Corinne A. Carey, No Second Chance: People With Criminal Records Denied Access To Public Housing,36 U. Toledo L. Rev. 545, 553 (2005) (Increasingly, private landlords are following the lead of publichousing and screening people for criminal histories).
Close
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. 21 See Gabriel J. Chin, Are Collateral Sanctions Premised On Conduct Or Conviction?: The Case OfAbortion Doctors, 30 Fordham Urb. L.J. 1685, 1686 n.10 (2003) (Mary M. Cheh, Constitutional Limitson Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending theCriminal-Civil Law Distinction, 42 Hastings L.J. 1325, 1357- 64 (1991); Susan R. Klein, Redrawing theCriminal-Civil Boundary, 2 Buff. Crim. L. Rev. 679, 692-707 (1999)).
Close 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.
22 See Guilty Pleas, 33 Geo. L.J. Ann. Rev. Crim P. 363, 373 (2004).
Close Courts have held that while a judge taking a guilty plea must advise of the direct consequencesimprisonment and finedefendants need not be told by the court or their counsel about collateral sanctions.
23 See, e.g., Foo v. State, 102 P.3d 346, 357-58 (Hawaii 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). For a discussion of this principle,see Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of GuiltyPleas, 87 Cornell L. Rev. 697 (2002).
Close 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, offenders, 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 state courts in 2002, 59% of those convicted of felonies were not sentenced to prison; 31% received probation and 28% jail terms. 24 Matthew R. Durose & Patrick A. Langan, Felony Sentences in State Courts, 2002, at 2, Bureau of JusticeStatistics Bulletin (Dec. 2004, NCJ 206916).
Close 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 persons. 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.
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 proposes that collateral sanctions and disqualifications contained in state statutes or regulations be collected in individual titles of the state code and state administrative code. The titles will be known as Collateral Sanctions on Offenders.
Sections 4 and 5 propose to make the existence of collateral sanctions known to defendants at important moments: When deciding whether to plead guilty, so they can make an informed decision, and when leaving the custody of the criminal justice system, so they can conform their conduct to the law. Given that collateral sanctions and disqualifications will have been codified, it will not be difficult to make this information available to offenders.
Section 6 limits the collateral sanctions and disqualifications applicable to employment. It is a modified version of Section 4-1005 of the Model Sentencing and Correction Act which has been widely adopted in the states.
Section 7 works in conjunction with Section 6, creating a limited judicial relief mechanism for offenders subject to a collateral sanction which prevents them from working. Persons successfully obtaining relief will be exempt from the absolute bar of the collateral sanction. However, they will be subject to evaluation and approval or disapproval by the employer or administrative board based on the facts underlying the conviction. The provision is designed to do nothing more than lift an absolute bar imposed by a conviction to allow a case-by-case evaluation.
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 will be mentioned.
UNIFORM COLLATERAL SANCTIONS AND DISQUALIFICATION ACT
SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Collateral Sanctions and Disqualification Act.
SECTION 2. DEFINITIONS. For purposes of this Act:
(A) The term collateral sanction means a legal penalty, disability, or disadvantage, however denominated, that is imposed on a person automatically upon that persons conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence. The term collateral sanction does not include terms of imprisonment, probation, parole, supervised release, sex offender registration or fines imposed by a judge when sentencing a criminal defendant.
(B) The term disqualification means a penalty, disability or disadvantage, however denominated, that a civil court, administrative agency, or official, is authorized, but not required to impose on a person convicted of an offense on grounds related to his conviction.
Comment
These definitions are taken directly from the ABA Standards. 25 ABA Standards for Criminal Justice: Collateral Sanctions and DiscretionaryDisqualification of Convicted Persons, Standard 19-1.1 (3d ed. 2004) (hereinafter, ABA CriminalJustice Standard ____).
Close They are intended to exclude from the definition of collateral sanction or disqualification direct criminal punishment, such as fine, imprisonment, probation, parole, supervised release, or sex offender registration imposed at sentencing, 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 serving on juries.
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. 26 Statutes requiring disclosure of criminal convictions, and allowing the decisionmaker to consider them aspart of a good moral character or general fitness analysis implicitly constitute disqualifications.
Close However, if a criminal court at sentencing takes away a medical license as punishment, the action is neither a collateral sanction nor a disqualification.
27 See, e.g., United States v. Singh, 390 F.3d 168 (2d Cir. 2004) (forfeiture of medical license as punishmentfor drug offense).
Close Even if they are enforced by criminal sanctions, restrictions which are not part of the sentence and apply only to convicted persons constitute collateral sanctions.
SECTION 3. COLLECTION OF COLLATERAL SANCTIONS AND DISQUALIFICATIONS.
(A) Within [six months] after the effective date of this Act, the [officials responsible for compiling the official State Code and the official State Administrative Code] (hereinafter Revisors) shall:
(i) Prepare drafts of new titles of the [State Code] and [State Administrative Code] (hereinafter (Codes) to be called Collateral Sanctions on Offenders. The Revisors shall identify every provision of the Codes then in force imposing collateral sanctions or disqualifications on offenders, remove them from their location in the Codes and transfer them to the title Collateral Sanctions on Offenders. The Revisors shall organize the provisions of the title Collateral Sanctions on Offenders in an appropriate manner.
(ii) Prepare a report describing any technical amendments to any title of the Code necessary or appropriate to make the Code clear and understandable, without changing its current meaning, including any necessary cross-references from various titles of the Code to relevant provisions of the title Collateral Sanctions on Offenders.
(B) The titles described in Section 3(A) shall not include provisions dealing with: 1) Sentencing of offenders (including imprisonment, jail, fines, financial assessments, restitution or forfeiture imposed as part of sentencing), probation, parole, or supervised release; 2) The custody or administration of persons committed to the Department of Corrections; 3) Registration requirements on convicted sex offenders imposed at time of sentence or civil commitment of individuals based on mental illness; 4) Victims rights which do not directly affect defendants.
(C) Unless otherwise directed by statute, after enactment of the titles Collateral Sanctions on Offenders of the [State Administrative Code] and [State Code], the Revisors shall codify any regulation and any statute imposing collateral sanctions or disqualifications on offenders which thereafter comes into effect into the appropriate location of the appropriate code.
(D) The Revisors shall make available or arrange to make available in a single document or volume: 1) The full text of the title Collateral Sanctions on Offenders from the [State Code]; 2) The full text of the title Collateral Sanctions on Offenders from the [State Administrative Code]; 3) The full text of all provisions of the state Constitution imposing collateral sanctions or disqualifications on offenders; 4) The full text of all provisions of state law offering relief from collateral sanctions or disqualification; and 5) The best available descriptive or full text compilation of collateral sanctions and disqualifications imposed by federal law based on conviction of state criminal offenses. This document shall be called the [State] Compendium of Collateral Sanctions on Offenders and Provisions for Relief. In addition to other methods of distribution, this Compendium shall be made available without charge on the Internet. It shall be published within four months after adoption of the title Collateral Sanctions on Offenders in the [State Code] or [State Administrative Code], whichever is earlier, and shall be updated at least annually.
Comment
In a very 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 on Offenders, regulating the legal status of this group in scores or hundreds of ways. But instead of publishing these laws together in volume C of the code, the statutes have been divided up and scattered. The sanctions have proliferated unsystematically, with a prohibition on felons obtaining one kind of license popping up in one corner of a states code, a prohibition of felons obtaining some other kind of government employment appearing in an agencys regulations.
While some disabilities may be well-known, such as felon disenfranchisement and the felon firearms prohibition, in most jurisdictions no judge, prosecutor, defense attorney, legislator or bureaucrat could identify all of the statutes that would be triggered by violation of the various offenses in the states criminal code. Although the information would be useful to many people, including judges, prosecutors, defense lawyers and those supervising offenders, plus 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 regulations defeats the purpose of having published codes in the first place.
This provision proposes to move all of the statutes and regulations imposing collateral sanctions and disqualifications to single titles or chapters of the states code and administrative code. No substantive change in the meaning of the laws is intended. Collecting collateral sanctions from a states code and administrative regulations would make the formal written law knowable to those who use and will be affected by it.
Section 3(A) proposes that Revisors of Statutes (or whatever they are called under state law) will be directed to create new titles of the code and administrative code, and prepare reports describing the technical changes necessary to make the new title and the existing titles coherent. For example, if a provision prohibiting people with certain convictions from holding insurance brokerage licenses is moved from the Insurance title to the new title, it may be helpful to have a reference in Insurance to the relevant provision of Collateral Sanctions on Offenders.
These collections should be enacted as positive law. This would assist in ensuring that the compilation remains current and complete; if published unofficially, they would quickly go out of date. Because official codification would ultimately require an act of the legislature, codification would give legislators an opportunity to examine the states collateral sanctions as a collection. At the moment, it is virtually impossible for policymakers and the public to make informed judgments about whether collateral sanctions are overabundant, just right, or insufficient. The ABA Standards recommended codification. See ABA Criminal Justice Standard 19-2.1.
Section 3(C) is designed to ensure that new statutes and regulations containing collateral sanctions and disqualifications continue to be placed in the new codes. Of course, a legislature cannot bind future legislatures, but in the absence of contrary legislative direction, new provisions should be placed in the titles Collateral Sanctions on Offenders.
Once the new titles are created, they should be made available widely; this is the goal of Section 3(D). Of course, for each state, the title from the codes and administrative code will present only part of the picture: also relevant are sanctions imposed by the state Constitution, federal law, and any provisions available for relief. These five categories of information cover the area, and for the benefit of those who do not have ready access to a full set of the state code and administrative regulations, should be made available as a body. Certainly the compendium should be viewable and downloadable on the Internet without charge, and if feasible distributed as a hardcopy booklet.
SECTION 4. ADVISEMENT AT GUILTY PLEA.
(A) Before accepting a plea of guilty or [nolo contendere or no contest] to a criminal charge, the court shall personally state the following to the defendant:
Conviction of this offense may have legal consequences beyond the [fine / imprisonment / /supervision] I have told you about. These additional legal consequences may include, but are not limited to disqualifying you from obtaining a government license, permit, or employment, making you ineligible for public benefits, such as public housing, forfeiture of property, enhanced punishment if you are convicted of another crime in the future, and limiting your civil rights, such prohibiting you from voting or possessing a firearm. If you are not a citizen of the United States, you are hereby advised that your plea may result in your deportation, removal, exclusion from admission to the United States, or denial of naturalization.
(B) After giving the advisement in Section 4(A), the Court shall ask the defendant and defense counsel:
Have you, [defendant], and you, [defense counsel], had a sufficient opportunity to discuss these legal consequences?
The court shall not accept a plea without an affirmative answer from both the defendant and defense counsel, and shall grant additional time for consultation if requested.
Comment
The Purpose of Advisement. It is relatively uncontroversial that it is desirable for persons pleading guilty to a criminal offense to understand the legal effects of that plea. It is fair to the individual pleading guilty, who is entitled to understand the consequences of the legal proceedings. It is also important for the court in sentencing 28 See, e.g., United States v. Pacheco-Soto, --- F.Supp.2d ----, 2005 WL 2243153 (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) (Thelegislature should authorize the sentencing court to take into account, and the court should consider,applicable collateral sanctions in determining an offenders overall sentence).
Close and to the prosecutor in making charging decisions and arguing for a particular sentence.
29 See Robert M.A. Johnson, Collateral Consequences, Message from the President of the National DistrictAttorneys Association, May-June, 2001 (http://www.ndaa-apri.org/ndaa/about/president_message_may_june_2001.html)
Close 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.
30 See note 23, supra.
Even in the absence of constitutional requirements, however, a majority of the states provide for disclosure of some collateral sanctions. The principal context is in the case of deportation of non-citizens. A number of court decisions hold that it is unnecessary to inform persons pleading guilty of the possibility of deportation if they are not citizens of the United States. 31 See, e.g., Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); Commonwealth v. Fuartado, 2005 WL2043680 (Ky. 2005).
Close Yet, at least two dozen jurisdictions by court rule or statute require advisement of potential deportation to those pleading guilty.
32 See U.S. Dist. Ct. for the Dist. of Colo. Local Rules § 3, App. K (form guilty plea notificationrequiring acknowledgement 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).
Close By court decision, Colorado and Indiana require advice of possible deportation, at least in some cases.
33 See 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. 34 Ind. Code § 35-35-1-2(a)(4).
Close Wyoming law requires the court to advise defendants in controlled substance offenses [of] the potential loss of entitlement to federal benefits.
35 Wy. R. Crim. P. 11(b)(1).
Close Even jurisdictions not requiring advisement of particular collateral consequences often recognize that it is a good idea.
36 Thus, Utah rules provide: Unless specifically required by statute or rule, a court is not required toinquire into or advise concerning any collateral consequences of a plea. Utah R. Crim. P. 11(e). Yet, thecomments state that the rule means the trial court may, but need not, advise defendants concerning thecollateral consequences of a guilty plea. Courts ruling that defendants need not be informed of collateralconsequences nevertheless often state that informing them would be a good idea. See, e.g., United States v.Banda, 1 F.3d 354, 356 (5th Cir. 1993) (This is not to say that [counsel] should not advise the client onpossible deportation[counsel ] should.). The facts of reported cases also make clear that courts oftenadvise defendants of collateral sanctions in the absence of a court rule or constitutional obligation. See,e.g., Duffy v. State, --- P.3d ----, 2005 WL 2219239 (Mont. 2005) (noting that trial court advised defendantof federal prohibition on felons possessing firearms).
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 one or more 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. 37 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 ofother things). For an example of a misleading disclosure which one court held prevented application of acriminal collateral sanction, see United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994).
Close 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.
38 See ABA Standards for Criminal Justice: Guilty Pleas, Standard 14-1.4(c) (3d ed. 1999):
Before accepting a plea of guilty or nolo contendere, the court shouldadvise the defendant that by entering the plea, the defendant may faceadditional consequences including but not limited to forfeiture ofproperty, the loss of certain civil rights, disqualification from certaingovernmental benefits, enhanced punishment if the defendant isconvicted of another crime in the future, and, if the defendant is not aUnited States citizen, a change in the defendants immigration status. The court should advise the defendant to consult with defense counsel ifdefendant needs additional information concerning the potentialconsequences of the plea.
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 person 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 was no big deal
The Method 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 defendants 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.
This Act contemplates that the defendant will be advised and counseled by defense counsel before the guilty plea, and that counsels satisfaction of this obligation will be briefly confirmed on the record by the court. The advantage of advisement by defense counsel is that it would be take less in-court time, and it could be done at a more meaningful stage in the process, as part of the decision whether to plead guilty rather than as part of the plea itself. Competent defense lawyers now advise their clients of potential collateral sanctions. 39 The Supreme Court recognized this in INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001), where theyexplained that competent defense counsel, following the advice of numerous practice guides, would haveadvised [defendants] concerning the possibility of the collateral sanction of deportation based on criminalconviction, and the avenues of relief therefrom. See also ABA Standards for Criminal Justice, GuiltyPleas, 14-3.2(f) (3d ed. 1999) (To the extent possible, defense counsel should determine and advise thedefendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences thatmight ensue from the entry of the contemplated plea.)
Close Moreover, advice could be tailored to the circumstances of the particular defendant; that is, if the defendant is a licensed barber rather than a licensed broker, the lawyer could focus on that and the other collateral sanctions of concern to the particular defendant as an individual. The judge is not in a position to do this as effectively, if for no other reason than the judge will not have access to the clients privileged information. The defendants receipt and understanding of advice about collateral sanctions can quickly be put on the record by the judge during the guilty plea colloquy.
Counsels task will be made easier by the compilation of collateral sanctions that is contemplated by Section 3 of this Act. All of the necessary information will be readily at hand. However, counsels advice in this area, as in others, is expected to be competent rather than perfect. A lawyer should be familiar with the law, including the law of collateral sanctions, 40 ABA Model Rule of Professional Conduct 1.1 (competence).
Close and should make a reasonably diligent investigation about relevant facts.
41 Id., Rule 1.3 (diligence).
Close But if, in spite of reasonable efforts, it turns out that the plea had unintended negative consequences, because, say, a defendants naturalization was invalid for reasons not known to the lawyer, or a defendant failed to mention a business association that would be impaired by a conviction, that would not suggest that a lawyers representation was inadequate. However, even jurisdictions which, in general, impose no duty to advise defendants of collateral sanctions, hold that attorneys who give incorrect, misleading advice may render a plea constitutionally invalid.
42 See, e.g., Goodall v. United States, 759 A.2d 1077, 1082-83 (D.C. 2000); People v. Young, 355Ill.App.3d 317, 323-24 (2005).
Although the major statutory change is in the context of the guilty plea colloquy, other areas of practice and policy will also change. For example, many jurisdictions have written plea forms, as pleadings or exhibits, which are signed by the defendant and defense counsel and filed as part of the record of the case. These forms should be amended to include the advisement of collateral sanctions, and acknowledgement of the opportunity for defense consultation. However, given the importance of ensuring that he defendant is actually informed and has actually had the opportunity to consult with counsel, the oral advisement should not be dispensed with. Another change might be amendment of the terms of government contracts with public defender organizations or private contract attorneys, to require this advice as part of representation of defendants.
The Effect of Non-Compliance on the Validity of the Plea. A difficult question is the effect of non-compliance with a court rule or statute mandating advice. Existing law requiring advice of possible deportation deals with this problem in several ways. Some provisions are silent about the consequences of non-compliance. 43 See, e.g., Az. R. Crim. P. 17.2(f).
Close Others specifically provide for plea withdrawal if required advice is not given.
44 See, e.g., Neb. Rev. Stat. § 29-1819.02(2).
Close New York, by contrast, states that the failure to advise a defendant in accordance with the law shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction.
45 N.Y. Crim. Proc. L. § 220.50(7).
Close Wyoming requires notice of discretionary and mandatory assessments, and states that a failure to advise does not affect the validity of a plea, but assessments, the general nature of which were not disclosed to the defendant, may not be imposed upon the defendant unless the defendant is afforded an opportunity to withdraw the guilty plea.
46 Wy. R. Crim. P. 11(b)(1)(B).
The criminal justice system depends in large part on the finality of guilty pleas. Accordingly, there is strong reason not to upset a plea for a technical deficiency in guilty plea procedure, and this is the prevailing rule. 47 See, e.g., Fed. R. Crim. P. 11(h) (A variance form the requirements of this rule is harmless error if itdoes not affect substantial rights.).
Close But what if the defendant can demonstrate a serious and prejudicial violation of a rule requiring defendants to be informed of collateral sanctions? What if, for example, a defendant who received a probationary sentence shows that: 1) the judge failed to confirm during the guilty plea colloquy that her defense lawyer had advised her of collateral sanctions, and she was in fact not informed that her guilty plea to a drug offense meant that she would be unable to adopt her foster child;
48 See Amy E. Hirsch, et al., Every Door Closed: Barriers Facing Parents with Criminal Records 68-69(2002).
Close 2) that she would not have pleaded guilty if she had known the legal consequences; and 3) she has a colorable argument that she is not guilty of the offense?
In favor of the conclusion that noncompliance with a rule should never lead to upsetting a plea is the argument that jurisdictions would be justifiably reluctant to adopt a rule that could upset the finality of pleas. Under current law there is no requirement that defendants be advised; it would be an example of the rule that no good deed goes unpunished if a states effort to offer more than current law requires resulted in undermining pleas that are by all appearances entirely valid. On the other side is the idea that a rule stating in text there are no penalties for failing to comply with this rule is unlikely to command respect; it might be systematically ignored.
This provision does not address the consequences of non-compliance. 49 This is essentially the approach of the ABA, which contemplates that jurisdictions will make their owndecisions about the consequences of non-compliance. See ABA Criminal Justice Standard 19-2.3(b)(failure of the court or counsel to inform the defendant of applicable collateral sanctions should not be thebasis for withdrawing a plea of guilty, except where otherwise provided by law, or where the failure rendersthe plea constitutionally invalid.)
Close The arguments on both sides are reasonable, but ultimately it is not a point on which uniformity is essential. In any event, the rule has been drafted in such a way that judges can successfully comply with it, with minimal burden. Accordingly, the procedure will be followed routinely, and the question of remedy for non-compliance will be of little practical importance.
SECTION 5. ADVISEMENT UPON RELEASE OR AT SENTENCING. Within 30 days before a person convicted of a crime is released from prison or jail, or, if the person is not sentenced to prison or jail, at the time of sentencing, officer or agency releasing or sentencing the offender shall provide written notice to the offender that collateral sanctions and disqualifications may apply to the offender because of the offenders conviction. The notice shall include a copy of, or information on how to obtain, the [State] Compendium of Collateral Sanctions and Provisions for Relief referred to in Section 3(D) of this Act.
Comment
Defendants convicted after trial will not have had the notice contemplated in Section 4 as part of the guilty plea colloquy. In addition, many defendants who did plead guilty will have received notice months or years before they are released from custody; many will probably have no recollection of what they were told. Persons in prison, of course, are subject to strict rules which are well known so there would generally be little value in informing prisoners about the largely theoretical additional level of regulation. However, once offenders are no longer in the physical custody of the criminal justice system, they should be informed that their conduct and status is subject to special restriction. The point is not fairness to the defendant in making the decision how to plead; the conviction by this stage is a fact. Rather, formal advisement promotes enforcement of the law. If, for example, persons 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. 50 See, e.g., United States v. Bethurum, 343 F.3d 712 (5th Cir. 2003) (defendant properly convicted of beingfelon in possession of a firearm, notwithstanding claim that he would not have pleaded guilty had herealized he would not be entitled to possess a firearm); Saadiq v. State, 387 N.W.2d 315 (Iowa) (affirmingconviction in spite of defendants claim that he was not told he could not possess a firearm), appealdismissed, 479 U.S. 878 (1986).
Close In Lambert v. California,
51 355 U.S. 225 (1957).
Close the Court found a due process violation in convicting a felon 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. 52 See, e.g., Az. R. Crim. P. 29.1 (Prior to his or her absolute discharge, a probationer shall receive fromhis or her probation officer, or the court if there is no probation officer, a written notice of the opportunityto have his or her civil rights restored, to withdraw his or her plea of guilty or no contest, or to vacate his orher conviction.).
Close To the extent that states provide for relief, they have concluded that it is fair to the individual offender and beneficial to society to let at least some former offenders pay their debt to society and move on. Notification to all offenders will facilitate the participation of deserving but legally unsophisticated offenders.
SECTION 6. LIMITATION OF COLLATERAL SANCTIONS AND DISQUALIFICATION RELATED TO EMPLOYMENT, EDUCATION AND LICENSING.
(A) This section applies only to acts by the State, its instrumentalities (including municipalities, subdivisions, boards, agencies, commissions and their employees), and government contractors made subject to this provision by contract or statute, directed at persons who have been convicted of an offense and have completed any term of incarceration imposed as part of the sentence.
(B) Notwithstanding any other provision of law, no existing or hereinafter enacted regulation, ordinance or policy shall impose a collateral sanction unless specifically authorized by statute. Neither a general grant of authority to make regulations or ordinances, nor a grant of authority to establish good moral character, admission or hiring standards shall constitute specific authorization, but they shall constitute authority to take the facts underlying convictions into account on a case by case basis in accordance with Section 6(D). Any regulation, ordinance or policy imposing collateral sanctions without specific authorization shall be construed as imposing a discretionary disqualification to be evaluated in accordance with Section 6(D).
(C) Notwithstanding any other provision of law, it is unlawful, solely by reason of a conviction:
(1) For the State to discharge, refuse to hire, or otherwise to discriminate against a person with respect to the compensation, terms, conditions, or privileges of his employment. [However, this section is not applicable to police departments, sheriffs departments, the state police, the department of corrections, and other law enforcement agencies];
(2) For a State trade, vocational, or professional school to suspend, expel, refuse to admit, or otherwise discriminate against a person; or
(3) For the State to suspend, revoke or refuse to issue or renew a license, permit, or certificate necessary to practice or engage in an occupation, profession, trade or business.
(4) All statutes now in force imposing collateral sanctions related to employment, education or licensing shall be deemed to impose discretionary disqualifications to be evaluated in accordance with Section 6(D), except [firearms, contact with vulnerable groups, law enforcement positions]. Any statute hereinafter enacted shall not be construed as imposing a collateral sanction, unless it explicitly states that this provision is inapplicable, or there is no reasonable interpretation of the statute other than that it imposes a collateral sanction
(D) It is not unlawful for the State to disqualify a person from employment, education or licensing if the decisionmaker determines, based on the relevant facts and circumstances, including the facts and circumstances of the offense, if they are relevant, that the person is presently unfit. In determining whether the prior conviction is directly related to the persons present fitness for the opportunity at issue, the following factors must be considered:
(1) The policy of this State, reflected in this Act, that former offenders should work, in order to promote public safety, reduce recidivism, and to encourage them to take responsibility for their obligations, including the obligation to support themselves and their families;
(2) The facts and circumstances underlying the crime, and their relation, if any, to the duties or functions of the occupation, profession, or educational endeavor;
(3) Any increased risk to the safety or welfare of individuals or the public if the opportunity is granted, including whether it will provides an opportunity for the commission of similar offenses;
(4) The persons rehabilitation and the persons conduct since the offense, including whether the person has committed other serious offenses since conviction;
(5) The age of the person when the offense was committed;
(6) The time elapsed since commission of the offense and since release; and
(7) Whether persons other than the applicant who have engaged in the prohibited conduct underlying the conviction (whether or not convicted) have been or would be disqualified.
(E) If conviction of a crime is used as a basis for rejection of an applicant for employment an education a program, or a license, permit or certificate, such rejection shall be in writing and shall set forth the evidence relied on and the reason or reasons for the rejection. A copy of such rejection shall be provided to the applicant.
Comment
The principle that at least some licenses and employment opportunities should not be arbitrarily denied to people with criminal convictions is well established in state codes. As Margaret Loves research shows, 53 See Margaret Colgate Love, Overcoming Legal Disabilities Resulting from Criminal Conviction: A State-By State Resource Guide, § 4 (Draft May 21, 2005).
Close 32 states have broad statutory restrictions on collateral sanctions and disqualifications imposed by state actors. Many of these statutes seem to be based on the Model Sentencing and Corrections Act. These restrictions fall into four categories:
Hawaii, 54 Haw. Rev. Stat. § 831-3.1.
Close New York,
55 N.Y. Corrections L. §§ 750-55.
Close Pennsylvania
56 19 Pa. C.S. Ann. § 9125.
Close and Wisconsin
57 Wisc. Stat. Ann. § 111.321 & § 111.335.
Close regulate consideration of a conviction in public and private employment and occupational licensure.
Colorado, 58 Colo. Rev. Stat. § 24-5-101.
Close Connecticut,
59 Ct. Gen. Stat. Ann. § 46a-80.
Close Florida,
60 Fla. Stat. Ann. § 112.011.
Close Kentucky,
61 Ky. Rev. Stat. § 335B.020.
Close Minnesota,
62 Minn. Stat. Ann. § 364.03.
Close New Mexico,
63 New Mex. Stat. Ann. §§ 28-2-1 to 28-2-6.
Close and Washington
64 Wash. Rev. Code Ann. § 9.96A.020.
Close prohibit disqualification from public employment and occupational licensure solely on grounds of conviction, but do not regulate private employment. Kansas
65 Kan. Stat. Ann. § 22-4710.
Close prohibits disqualification from public and private employment but does not regulate occupational licensing.
Arkansas, 66 Ark. Rev. Stat. § 13-904.
Close California,
67 Cal. Bus. & Prof. Code §§ 490, 493.
Close Delaware,
68
Close Illinois,
69 730 Ill. Comp. Stat. 5/5-5-5.
Close Indiana,
70 Ind. Code § 25-1-1.1-1.
Close Louisiana,
71 La. Stat. Ann.-R.S. 37:2950.
Close Maine,
72 5 Maine Rev. Stat. Ann. § 5301.
Close Michigan,
73 Mich. Comp. Laws Ann. § 338.42.
Close Missouri,
74 Ann. Missouri Stat. §§ 314.200 & 561.016.
Close Montana,
75 Mont. Code Ann. § 37-1-201.
Close New Jersey,
76 N.J. Stat. Ann. §§ 2A:168A-1 & 2C:51-1.
Close North Dakota,
77 N.D. Cent. Code, 12.1-33-02.1.
Close Oregon,
78 Or. Rev. Stat. § 670.280.
Close South Carolina
79 S. C. Code § 40-1-140.
Close and Virginia
80 Va. Code Ann. § 54.1-204.
Close regulate occupational licensing but not employment.
Arizona, 81 Az. Rev. Stat. § 13-904(E).
Close California,
82 Cal. Code Regs. Tit. 2, § 7287.4(d)(1)(B).
Close Ohio,
83 Ohio Rev. Code § 2953.33(B).
Close Illinois
84 775 Ill. Comp. Stat. 5/2-103.
Close Massachusetts,
85 Mass. Gen Laws Ann. 127 § 152.
Close and West Virginia
86 W. Va. Code, § 5-1-16a.
Close bar consideration of a conviction only when rights have otherwise been restored or a conviction vacated or expunged.
Although they vary in specifics, most statutes provide that a conviction shall not be an absolute bar. However, almost all also permit the conviction or the facts underlying it to be weighed by the decisionmaker on a case by case basis, depending on whether it is directly or substantially related to the employment or license at stake.
The substantial or direct relation test is deep in the law. Of the minority of states without general laws, many nevertheless apply the test in the context of at least one licensing or regulatory regime. At least 10 states use the test alone, 87 See, e.g., Ala. Code § 34-1A-5 (d)(2)a. (An applicant [for an alarm system installer license] shall not berefused a license solely because of a prior criminal conviction, unless the criminal conviction directlyrelates to the occupation or profession for which the license is sought.); Iowa Code Ann. § 147.3 (healthrelated professions licensing; A board may consider the past felony record of an applicant only if thefelony conviction relates directly to the practice of the profession); Mass. Gen. Laws Ann. 112 § 52D(The board . . . may [discipline] any dentist convicted . . . of a felony related to the practice of dentistry);Md. R. 4-340(e) (procedures required after sentencing in drug crime cases) (If the defendant holds alicense, but has no such prior conviction, the court shall determine whether, prima facie, there is arelationship between the current conviction and the license, including [then listing factors]); Miss. Code § 73-67-27(1)(e) (license may be denied or revoked if person has conviction or charges that directly relatesto the practice of massage therapy or to the ability to practice massage therapy.); Neb. Rev. Stat. § 87-404 (franchise termination protections inapplicable when the alleged grounds are (a) the conviction . . . anindictable offense directly related to the business); Nev. Rev. Stat. § 625.410(4) (discipline permissiblebased on Conviction of . . . any crime an essential element of which is dishonesty or which is directlyrelated to the practice of engineering or land surveying); N.C. Gen. Stat. Ann. § 88A-21(a)(1) (groundsfor discipline include Conviction of [a crime] if any element of the crime directly relates to the practice ofelectrolysis.); 59 Ok. Stat. Ann. § 1503A(B) (requiring rejection of an applicant who has a felonyconviction which directly relates to the duties and responsibilities of the occupation of pawnbroker.);Vernon's Texas Stat. & Codes Ann., Government Code § 52.029(a)(6) (discipline permitted for afinal conviction of a felony or misdemeanor that directly relates to the duties and responsibilities of acertified court reporter).
Close at least 7 others provide that a felon or a crime substantially related to the license or occupation is disqualifying.
88 See, e.g., Alaska Stat. § 08.68.270 (The board may [discipline] a person who . . . (2) has beenconvicted of a felony or other crime if the felony or other crime is substantially related to the qualifications,functions or duties of the licensee); Idaho Code § 54-2103(23) ("In good standing" means that anapplicant: (e) Has not been convicted of a felony . . .; and (f) Has no criminal conviction record or pendingcriminal charge relating to an offense the circumstances of which substantially relate to the practice ofveterinary medicine.); 225 Ill. Comp. Stat. Ann. 2/110(a)(2) (discipline permitted against licensedacupuncturist for Conviction of any crime under the laws of any U.S. jurisdiction that is (i) a felony, (ii) amisdemeanor, an essential element of which is dishonesty, or (iii) directly related to the practice of theprofession.); R.I. Stat. Ann. § 23-16.3-12 (3) (discipline of clinical laboratory scientists authorized for Aconviction . . . which is a felony or which is a misdemeanor, an essential element of which is dishonesty, orof any crime which is directly related to the practice of the profession); Utah Code Ann. § 13-12-3(6)(b)(restricting franchise termination except Where the alleged grounds are caused by the conviction of thedealer or distributor . . . of a criminal offense directly related to the business); 26 Vt. Stat. Ann. §2424(e) (As used in this section, "in good standing" means that the applicant: . . . (5) has not beenconvicted of a felony; or (6) has no criminal conviction record nor pending criminal charge relating to anoffense that relates substantially to the practice of veterinary medicine.); Ann. Code W. Va. § 30-3-14(c)(2) (discipline authorized for: Being found guilty of a crime in any jurisdiction, which offense is afelony, involves moral turpitude or directly relates to the practice of medicine.)
Close Accordingly, the states are virtually unanimous in holding that in some instances, criminal convictions should be considered not as a broad category, but based on their specific facts and circumstances, as they relate to the license, privilege or employment at issue. Collateral sanctions are meant to protect public welfare and safety, not inflict arbitrary and needless harms. Accordingly, as reflected by the laws already on the books, most states agree that it is important whether a conviction directly relates to a fitness to engage in a particular occupation or to obtain a particular license.
However, it must be acknowledged that even in states with broad protective legislation, the principle is honored, to some extent, in the breach. Many statues and regulations can be identified, even in these states, which conflict with the non-discrimination provisions by imposing absolute bars even in the absence of a general or fact-specific determination that the offense is directly related to the sanction.
Section 6 is based on the Model Sentencing and Corrections Act, § 4-1005. However, the provision in this draft does not identify a list of prohibited collateral sanctions, as do the ABA Standards and the Model Sentencing and Corrections Act. The Model Sentencing and Corrections Act, § 4-1001(b) provides that a convicted person 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)).
Section 6(A) differs from the original 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 veterans preferences, or reserved opportunities for the disabled). If any category of employer is going to take a chance by helping ex-offenders, it is going to be the public sector.
However, Section 6(A) contemplates that 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.
A statute like this represents a policy direction, which a legislature might wish to make permanent. Yet, short of amending a state constitution or the U.S. Constitution, a given legislature cannot absolutely bind future legislatures. Thus, the approach of the ABA Criminal Justice Standards, essentially to ban collateral sanctions in most circumstances, 89 ABA Criminal Justice Standard 19-2.2 provides: The legislature should not impose a collateral sanction on a personconvicted of an offense unless it determines that the conductconstituting the particular offense provides so substantial a basis forimposing the sanction that the legislature cannot reasonablycontemplate any circumstances in which imposing the sanction wouldnot be justified.
Close cannot be effectively accomplished through a mere statutealthough at any given moment a legislature might accept it, a future legislature is free to go in a different direction.
Nevertheless, a state legislature can enact legislation constraining and channeling the creation and imposition of collateral sanctions. Section 6(B) represents one possible solution. This provision is designed to restrict creation of absolute, blanket collateral sanctions to the legislature. Individual agencies, municipalities and boards may not be equipped or inclined to consider large policy questions when drafting ordinances and regulations. Accordingly, in order to, say, simplify their own decisionmaking, or because they did not think deeply about the issue, a board might impose absolute bans on some or all persons with criminal convictions under circumstances when the legislature as a whole would find a categorical policy unwarranted. The idea of Section 6(B) is to require that such determinations be made by the legislature itself, which considers the welfare of the state as a whole in addition to the concerns of the licensed occupation or profession, or of the particular locality.
Another technique suggested in Sections 6(B) and (C) is to write interpretive presumptions into law. In addition to depriving lawmakers lower than the legislature itself of power to impose collateral sanctions, existing ordinances and regulations imposing collateral sanctions would be re-written en masse to impose discretionary disqualifications. Section (C)(4) would create an interpretive presumption that statutes did not intend to impose collateral sanctions, unless the statute exempted itself from Section (C)(4) or there was no other reasonable interpretation.
Another possibility suggested in this draft is to anticipate the handful of particular, specified circumstances where they will be justified. This approach is suggested by a line in Section 6(C), which differs from the Model Sentencing and Corrections Act by allowing law enforcement employers to bar persons based on conviction, rather than on a case by case analysis. Arizona, Colorado, Florida, Hawaii, Louisiana, New Mexico and New York specifically exclude law enforcement from the coverage of their statutes, and undoubtedly many others, not mentioning it specifically, do so in practice. Another collateral sanction which will undoubtedly be part of state law in the future is limitation of the ability of sex offenders to work in schools, hospitals and with the elderly. 90 See, e.g., 5 Me. Rev. Stat. Ann. § 5301(2)(E); Wash. Rev. Code § 9.96A.020(3) & (4).
Close
Section 6(C) establishes the general principle that blanket collateral sanctions will not be created with respect to employment, admission to educational institutions and licensing. It applies both to formal and informal policies, and individual decisions. This provision is similar to the MSCA in that in effect it contemplates that there will be no categorical, absolute collateral sanctions in the employment and licensing context. Everything, it appears, will be dealt with on a case-by-case basis. However, when adopted by a state, inevitably there will be at least a handful of exceptions; persons with recent armed robbery convictions, for example, will not be permitted to have pistol permits; pedophiles will not receive licenses to operate day care centers. Nevertheless, it should serve as a reminder of the principle that blanket collateral sanctions should be sharply limited to the situations where they are genuinely necessary.
Section 6(D) describes the factors relevant to a case by case analysis of a conviction. Eleven states have as positive law the policy set forth in (D)(1), sometimes as a preamble to their statute, sometimes as a licensing factor, as here. 91 Ark. Code Ann. § 17-1-103(a) ((1) It is the policy of the State of Arkansas to encourage and contributeto the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities ofcitizenship. (2) The public is best protected when offenders are given the opportunity to secure employmentor to engage in a meaningful trade, occupation, or profession.); Colo. Rev. Stat. Ann. § 24-5-101(2); Ct.Gen. Stat. Ann. § 46a-79; 730 Ill. Comp. Stat. 5/5-5-5(h) (recognizing the public policy of this State, asexpressed in Article 5.5 of this Chapter, to encourage the licensure and employment of persons previouslyconvicted of one or more criminal offenses); Minn. Stat. Ann § 364.01; Mont. Code Ann. § 37-1-201;N.J. Stat. Ann. 2A:168A-1; New Mexico Stat. Ann. § 28-2-2; N.Y. Corrections L. § 753 (factor inevaluating decision); Rev. Code Wash. Ann. § 9.96A.010; Wisc. Stat. Ann. § 111.31.
Close
Section 6(D) uses the passage of time as a factor. Some jurisdictions have a term of years, after which, if the person has not been convicted of another crime, rehabilitation is presumed. 92 See, e.g., N.M. Stat. Ann. § 28.2.4(B) (three years after imprisonment or completion of parole andprobation); N.D. Cent. Code § 12.1-33-02.1(2)(c) (five years after discharge from parole, probation orimprisonment).
Close
Factor (D)(7) is designed to determine whether the disqualification is based on conduct or conviction. If Plumbers 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 child taken away 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. 93 ABA Criminal Justice Standard 19-3.1 (The legislature should prohibit discretionary disqualificationof a convicted person from benefits or opportunities . . . on grounds related to the conviction, unlessengaging in the conduct underlying the conviction would provide a substantial basis for disqualificationeven if the person had not been convicted.)
Close
SECTION 7. RELIEF FROM COLLATERAL SANCTIONS BASED ON EVIDENCE OF REHABILITATION TO ASSIST IN EMPLOYMENT.
(A) A person subject to collateral sanctions because of a criminal conviction in this State or another jurisdiction may apply to the [general trial jurisdiction] Court in the county in which they live for relief from one or more collateral sanctions imposed by the law of this State.
(B) In order to obtain relief, the applicant must show:
(i) That removal of the collateral sanction(s) is necessary:
(a) To obtain particular public or private employment, or
(b) To obtain a license, permit, certificate or other government approval, which is necessary for the applicant to obtain employment or to operate a business owned by the applicant, and
(ii) That at least [2] years has elapsed since the conviction giving rise to the collateral sanction(s), and since release from the prison or jail sentence imposed under that conviction, and
(iii) That for the [2] years immediately prior to application, and during the pendency of the application, the applicant has been engaged in a law-abiding occupation or activity, including but not limited to lawful employment, training, education, or rehabilitative programs, and has been free of felony convictions during that period, and
(iv) That there is no unresolved intentional or unjustified failure to comply with the terms of the sentence for the offense giving rise to the collateral sanction, and
(v) That there are no unresolved criminal charges pending against the applicant, and
(vi) If the applicant was convicted of an offense involving drugs or alcohol, or if the conduct underlying the criminal conviction involved drugs or alcohol, the results of any urinalysis required by the court are free of evidence of the use of illegal drugs.
If these showings are made, the Court shall grant the application, and issue an order relieving the applicant from the effect of specified collateral sanction(s).
(C) The effect of an order issued under this section is to remove the specified collateral sanction(s) presenting an absolute bar to employment or licensing. An order issued pursuant to this Section does not preclude the decisionmaker from considering the facts underlying the conviction, or considering that they have been established by the judgment of conviction. A government decisionmaker shall evaluate the underlying facts using the factors set forth in Section 6(C) of this Act.
(D) The applicant shall serve a copy of an application under this Section on the prosecuting attorney for the county where the applicant resides, and, if it is not the same agency, the prosecutors office responsible for obtaining the conviction giving rise to the collateral sanction. Prosecutors served shall be allowed to appear and participate.
Comment
All or virtually all states have pardons; about half the states also have expungement, sealing, set-aside, vacation, or some other mechanism for restoring civil rights or avoiding collateral sanctions. I am not optimistic that a uniform law in this area would be widely adopted. This provision is designed to come at the problem a different way. It does not undo the conviction as a whole, or even eliminate collateral sanctions as a whole. Instead, it is tightly linked to employment.
The importance of this provision is related to the breadth of Section 6. If Section 6 substantially cuts back on categorical collateral sanctions, and turns all but a few into discretionary determinations, a provision like this may come into play rarely or be entirely unnecessary. On the other hand, if the legislature and administrative agencies cannot hold back from imposing broad collateral sanctions across a wide range of contexts, a relief valve will be essential.
ORIGINAL VERSION OF MODEL SENTENCING AND
CORRECTIONS ACT, § 4-1005
(a) This section applies only to acts of discrimination directed at persons who have been convicted of an offense and discharged from their sentence.
(b) It is unlawful discrimination, solely by reason of a conviction:
(1) for an employer to discharge, refuse to hire, or otherwise to discriminate against a person with respect to the compensation, terms, conditions, or privileges of his employment. For purposes of this section, "employer" means this State and its political subdivisions and a private individual or organization [employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year];
(2) for a trade, vocational, or professional school to suspend, expel, refuse to admit, or otherwise discriminate against a person;
(3) for a labor organization or other organization in which membership is a condition of employment or of the practice of an occupation or profession to exclude or to expel from membership or otherwise to discriminate against a person; or
(4) for this State or any of its political subdivisions to suspend or refuse to issue or renew a license, permit, or certificate necessary to practice or engage in an occupation or profession.
(c) It is not unlawful discrimination to discriminate against a person because of a conviction if the underlying offense directly relates to the particular occupation, profession, or educational endeavor involved. In making the determination of direct relationship the following factors must be considered:
(1) whether the occupation, profession, or educational endeavor provides an opportunity for the commission of similar offenses;
(2) whether the circumstances leading to the offense will recur;
(3) whether the person has committed other offenses since conviction or his conduct since conviction makes it likely that he will commit other offenses;
(4) whether the person seeks to establish or maintain a relationship with an individual or organization with which his victim is associated or was associated at the time of the offense; and
(5) the time elapsed since release.
(d) [The State Equal Employment-Opportunity Commission has jurisdiction over allegations of violations of this section in a like manner with its jurisdiction over other allegations of discrimination.]
Comment
There is a direct correction between employment and recidivism. E.g., ECON, Inc. at 3-4, 76; D. Glaser, The Effectiveness of a Prison and Parole System 311-61 (1964); Nat'l Advisory Comm'n Correc.Std. 16.13 and Commentary. Providing employment opportunities to persons convicted of crime would seem, then, to be a primary goal of the criminal justice system. See, e.g., Article IV, Part 8 supra; ABA Joint Comm., §§ 4.1 to 4.4, 10.4 and Commentary; Nat'l Advisory Comm'n Correc.Stds. 16.13, 16.17 and Commentary. The intent of this section is to implement this goal by prohibiting discrimination against offenders by the State or when the offender is engaged in employment-related activities unless there is a direct relationship, as defined in subsection (c), between the offense and the activity which the person seeks to pursue. See, e.g., ABA Joint Comm., §§ 10.1 to 10.7 and Commentary; Nat'l Advisory Comm'n Correc.Std. 16.17 and Commentary. See also Smith v. Fussenich, 440 F.Supp. 1077 (D.Conn.1977) (Conn. statute barring released felony offender from employment as security guard or private detective found overbroad because it does not recognize differences in fitness and character of felony offenders nor the relationship between the offense committed and the requirements of the job).
The great majority of states, in their licensing requirements, presently require no such relationship nor, indeed, exhibit any rational purpose for most of the restrictions imposed. E.g., President's Comm'n on, Corrections at 90- 91. As the Task Force found:
"[I]t seems appropriate to suspend or revoke licenses for offenses involving dangerous driving, both to remove the unfit driver from the road and to deter such behavior. But to bar convicted persons from numerous activities without regard to the particular conviction's relevance to the particular activity can be expected seriously to impede efforts to rehabilitate offenders by encouraging their participation in society, without any compensating benefit to society.
"Most of the law in this area is overly broad. Thus, good character is often made a prerequisite for activities where it is of no particular relevance. It is, for example, a common requirement for obtaining a barber's license. Yet it is doubtful whether good character is of any more importance to exercise of one's duties as a barber than to most other occupations. And regulatory legislation generally makes no effort to define the kind of character, and thus the kind of convictions, relevant to fitness. .......... In the area of individual licenses, professional and occupational groups are often given the power to determine who is initially qualified to receive a license and to regulate the standards of those licenses by defining rules of conduct and revoking or suspending licenses for breach of those rules. Such groups tend to be primarily concerned with the interests of their own members. Thus, when faced with the problem of whether to license persons with criminal records, they may be unduly concerned with the effect on the status of their professions. Further, to the extent they try to consider the public interest, they are likely to have an unrealistic view of the importance of their own profession or occupation ........."
Id. at 91. For a comprehensive survey of statutory restrictions on the ability of a person convicted of an offense to obtain or retain a license, see, ABA Clearinghouse on Offender Employment Restrictions, Removing Offender Employment Restrictions (March 1976). It is there reported, for example, that 47 states require evidence of good moral character (22 of these states also require that the applicant be free of a criminal record) in order for an applicant to obtain a barber's license.
The House of Delegates of the American Bar Association adopted, in 1975, a resolution recommending the repeal of laws that discriminated against ex-offenders in state employment and licensing when the discrimination is based solely on the existence of prior convictions. 61 A.B.A.J. 1088 (1975). At least three states now require that, unless the offense relates to the employment sought, a person convicted of an offense may not be disqualified from employment by the state or from practicing any occupation or profession for which the state must issue a license. E.g., Conn.Gen.Stat.Ann., § 4-61n to 61s (West Supp.1977); Fla.Stat.Ann., § 112.011 (West Supp.1977); Wash.Rev.Code Ann., §§ 9.96A.010 to (West 1977). Hawaii has a similar statute prohibiting discrimination by private employers. Haw.Rev.Stat. ch. 378 (Supp.1975). Offenses include those committed in another jurisdiction.
Subsection (a) is intended to permit an employer to discontinue in his employ an employee charged with an offense who is awaiting trial or sentence or has been convicted and committed to the division of community based services. It is hoped that an employer would not normally choose to discontinue employment but might do so in the case of a well publicized trial.
The bracketed language in subsection (b)(1) restricts the reach of the section to private employers that come under the purview of the Equal Employment Opportunity Act of 1972. A state that has enacted its own Equal Employment Opportunity Act may choose to track the requirements of its own Act.
Subsection (d) derives from the Proposed New Federal Criminal Code, § 3505.
Subsection (e) provides a method for initial agency determination for a state that has enacted its own state Equal Opportunity Act. E.g., Haw.Rev.Stat. ch. 378 (Supp.1975) Hawaii E.O.C. has jurisdiction to hear ex-offender employment discrimination complaints); Conn.Gen.Stat.Ann., § 4-61q. (West Supp.1977) (Conn. Human Rights and Opportunities Commission has jurisdiction to hear ex-offender discrimination complaints with respect to state employment or licensing). The attached table provides Hawaii statistics as to its experience with ex-offender employment discrimination complaints. It indicates that such complaints will not be unduly burdensome; their number is small compared to the total number of complaints brought.
This section includes no exemption of the profession of law from the operation of the section. It is recognized that courts have traditionally viewed the regulation of the practice of law within their inherent power. E.g., In re Mackay, 416 P.2d 823, 836-37 (Alaska 1964), cert. denied, 385 U.S. 890 (1966); Brotsky v. State Bar, 57 Cal.2d 287, 301, 19 Cal.Rptr. 153, 159, 368 P.2d 697, 703 (1962); In re Lavine, 2 Cal.2d 324, 327-328, 41 P.2d 161, 162-64 (1935); State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 230, 140 A.2d 863, 868 (1958); In re Opinion of the Justices, 279 Mass. 607, 610, 180 N.E. 725, 727 (1932); In re Fox, 296 So.2d 701, 703-04 (Miss.1974); In re Buckles, 331 Mo. 405, 53 S.W.2d 1055 (1932); In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 286-287, 275 N.W. 265, 266-68 (1937); In re Community Action for Legal Services, Inc., 26 App.Div.2d 354, 361, 274 N.Y.S.2d 779, 784 (1966); Jenkins v. Oregon State Bar, 241 Or. 283, 286, 405 P.2d 525, 526 (1965). It is further recognized that courts generally view legislative statements concerning qualification for the practice of law to state minimum standards beyond which they may require additional qualifications. E.g., In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 163 (1935). The decision not to exempt the legal profession reflects a determination that such exemption from the operation of the section would create an anomaly in terms of policy of this Part. More important, it was considered that to exclude offenders from the practice of law solely because of the commission of an offense is to create a discrimination unwarranted in its overbreadth. Cf. Smith v. Fussenick, 440 F.Supp. 1077 (D.Conn.1977). It is, of course, true that this section will not control in a jurisdiction in which a court determines that it represents an intrusion into the court's perogative to govern the practice of law. It is hoped, however, that in such jurisdictions courts will consider and expressly assume the policy choice reflected in the section.