This post is a presentation of information found in the Proposed Final Draft of the Sentencing project. This will be presented at ALI’s Annual Meeting this May.
The Model Penal Code: Sentencing project includes a new provision on Sentencing Guidelines and Collateral Consequences. The goal of this new provision is to aggregate in one location as much information as possible about collateral consequences so that the public, defendants, counsel, and courts can easily access information regarding the full consequences of conviction.
Section 6x.02 requires the sentencing commission to collect and maintain information on all collateral consequences as defined in § 6x.01, whether mandatory or discretionary, and to make that information accessible to the public. It also requires the commission to regularly maintain and publish its compendium, making it a reliable and easily accessible resource for individuals and their lawyers at every stage of a criminal prosecution, from charging through sentencing.
§ 6x.02. Sentencing Guidelines and Collateral Consequences.
(1) As part of the sentencing guidelines, the sentencing commission [or other designated agency] shall compile, maintain, and publish a compendium of all collateral consequences contained in [the jurisdiction’s] statutes and administrative regulations.
(a) For each crime contained in the criminal code, the compendium shall set forth all collateral consequences authorized by [the jurisdiction’s] statutes and regulations, and by federal law.
(b) The commission [or designated agency] shall ensure the compendium is kept current.
(2) The sentencing commission shall provide guidance for courts considering petitions for orders of relief from mandatory collateral consequences under §§ 6x.04 and 6x.05. The commission’s guidance shall take into account the extent to which a mandatory consequence is substantially related to the elements and facts of an offense and likely to impose a substantial and unjustified burden on a defendant’s reintegration.
Information collected. In many jurisdictions, the number of collateral consequences that attach upon conviction number in the hundreds. The laws that authorize these consequences are scattered throughout statutes and regulations; aggregating such a high volume of information is no easy task, particularly given the pace at which such legislation is passed and modified. The information that subsection (1) requires the commission to gather is similar in nature and scope to that required by the Uniform Law Commission’s Uniform Collateral Consequences of Conviction Act (UCCCA) (2010), § 4 (requiring “designated governmental agency or official” to “identify . . . any provision . . . which imposes a collateral sanction or authorizes the imposition of a disqualification” and “make that information publicly available, along with a link to an online compilation of the most recent collection of the collateral consequences imposed by federal law and any provision of federal law that may afford relief from a collateral consequence”).
While such a task is daunting, it is not impossible and has been made simpler by recent research efforts. In 2007, Congress directed the National Institute of Justice to compile a 50-state inventory of collateral consequences. Through the efforts of the American Bar Association, the National Inventory of the Collateral Consequences of Conviction is now available online to the public. It provides a listing of all mandatory collateral consequences and discretionary collateral consequences authorized by statute or administrative regulation in every state and in the federal system. Although this resource is one that will require continuous updating, it has removed many of the logistical barriers to the collection of such information that previously existed.
Distribution. There are several existing examples of web-based compilations. The American Bar Association’s National Inventory of Collateral Consequences, www.abacollateralconsequences.org, uses a website to provide a searchable database of information on collateral consequences in a number of jurisdictions, as does Ohio’s Civil Impacts of Criminal Convictions (CIVICC) database.
Guiding courts on petitions for relief. In many states, administrative licensing agencies are called upon to make discretionary decisions about the imposition of employment restrictions for people with criminal records. In doing so, many are guided by statutory standards that permit the imposition of employment and licensing restrictions only when a crime is substantially related to the work for which a license or permit is sought. See generally Margaret Colgate Love, 50-State Comparison Consideration of Criminal Records in Licensing and Employment (2016).In determining whether a substantial relationship exists, states look to factors such as the nature of the crime; the relationship of the crime(s) to the activities authorized by the license; the relevance of any conviction to the fitness of the licensee to perform the occupation authorized by the license; the length of time since the conviction; and the behavior and activities of licensee following conviction.