This post is a presentation of information found in the Proposed Final Draft of the Sentencing project.   Please also consider reading Part 1: Sentencing Guidelines

This provision, new to the Code, provides assurance that convicted individuals are made aware of the collateral consequences to which they will be subject, and provides courts with a mechanism for alleviating some types of mandatory collateral consequences on a case-by-case basis. This provision recognizes that although collateral consequences can serve important regulatory goals, there are instances in which the application of a particular collateral consequence will unnecessarily impede a convicted individual’s successful reintegration into the law-abiding community without advancing public safety. This is likely to be most true when the consequence bears little connection to the individual’s risk of criminal re-offending.

This Section has two subsections. The first, subsection 6x.04(1), requires courts at sentencing to confirm that defendants have been provided with basic written information about the sources and types of collateral consequences to which they may be subject as a result of criminal conviction. This information, which may come from counsel or the court, includes a comprehensive list of relevant state and federally imposed collateral consequences (presumably drawn from the sentencing commission’s compendium; see § 6x.02(1)), along with notice that the consequences may change with time or as a convicted person moves from one jurisdiction to another. While this information should be provided to the defendant at earlier points in the criminal process (such as at arraignment and plea), the sentencing court is obliged to confirm at the time of sentencing that the defendant has been given written notice of the laws that will govern his post-sentencing conduct. Such full disclosure is an improvement on current practice in most states, where individuals are provided with no (or very limited) information about the long-term collateral consequences of their convictions.

In addition to providing the defendant with notice, § 6x.04(2) authorizes the sentencing court, upon request from the convicted individual at sentencing or at any time during the sentence, to grant relief from the automatic imposition of specific mandatory collateral consequences whose burdens outweigh their regulatory benefits in the particular case.

Under § 6x.04(2), a convicted individual may petition the sentencing court, at the time of sentencing or thereafter to grant relief from the mandatory nature of a collateral consequence that is imposed by state law and is related to employment, education, housing, public benefits, registration, occupational licensing, or the conduct of a business. Although the sentencing court is not obliged to grant relief, or even to hold a hearing on the petition, the court may grant relief when it finds, after consulting any guidance offered by the sentencing commission under § 6x.02(2), that the defendant has shown “by clear and convincing evidence that the consequence imposes a substantial burden on the individual’s ability to reintegrate into law-abiding society, and that public- safety considerations do not require mandatory imposition of the consequence.”

Section 6x.04(2)(c). When the sentencing court grants relief from a mandatory collateral consequence under § 6x.04(2), the court merely removes the mandatory nature of the consequence: it does not prevent other authorized decisionmakers, such as licensing boards, from later considering the conduct underlying the conviction when deciding whether to confer a discretionary benefit or opportunity, so long as the facts underlying the conviction are substantially related to the individual’s competency to exercise the benefit or opportunity sought. See § 6x.04(3).

The original Code provided a mechanism for relieving mandatory collateral consequences imposed as a result of conviction. Original § 306.6(1) allowed a court to order that a previously entered judgment should no longer “constitute a conviction for the purpose of any disqualification or disability imposed by law because of the conviction of a crime.” Model Penal Code § 306.6(1) (1962). Such orders were available to individuals who had successfully completed both custodial and noncustodial sentences. Id. In addition to ordering relief from collateral consequences under § 306.6(1), the Code authorized the court to vacate the conviction entirely upon proof that a convicted person had lived a law-abiding life for five years following the completion of sentence (or less, if the person was a young-adult offender). Model Penal Code § 306.6(2) (1962). The revision does not authorize courts to vacate convictions, but instead allows them to grant relief from particular mandatory collateral consequences without disturbing the underlying conviction.

Black Letter:

§ 6x.04. Notification of Collateral Consequences; Order of Relief.

(1) At the time of sentencing, the court shall confirm on the record that the defendant has been provided with the following information in writing:

(a) a list of all collateral consequences that apply under state or federal law as a result of the current conviction;

(b) a warning that the collateral consequences applicable to the offender may change over time;

(c) a warning that jurisdictions to which the defendant may travel or relocate may impose additional collateral consequences; and

(d) notice of the defendant’s right to petition for relief from mandatory collateral consequences pursuant to subsection (2) during the period of the sentence, and thereafter pursuant to §§ 6x.05 and 6x.06.

(2) At any time prior to the expiration of the sentence, a person may petition the court to grant an order of relief from an otherwise-applicable mandatory collateral consequence imposed by the laws of this state that is related to employment, education, housing, public benefits, registration, occupational licensing, or the conduct of a business.

(a) The court may dismiss or grant the petition summarily, in whole or in part, or may choose to institute proceedings as needed to rule on the merits of the petition.

(b)When a petition is filed, notice of the petition and any related proceedings shall be given to the prosecuting attorney;

(c) The court may grant relief from a mandatory collateral consequence if, after considering the guidance provided by the sentencing commission under
§ 6x.02(2), it finds that the individual has demonstrated by clear and convincing evidence that the consequence is not substantially related to the elements and facts of the offense and is likely to impose a substantial burden on the individual’s ability to reintegrate into law-abiding society, and that public-safety considerations do not require mandatory imposition of the consequence.

(d) Relief should not be denied arbitrarily, or for any punitive purpose.

(3) An order of relief granted under this Section does not prevent an authorized decisionmaker from later considering the conduct underlying the conviction when making an individualized determination whether to confer a discretionary benefit or opportunity, such as an occupational or professional license. In such cases, the benefit or opportunity may be denied notwithstanding the court’s order of relief if the conduct underlying the conviction is determined to be substantially related to the benefit or opportunity the individual seeks to obtain. If the decisionmaker determines that the benefit or opportunity should be denied based upon the conduct underlying the conviction, the decisionmaker shall explain the reasons for the denial in writing.

ALI Staff

The American Law Institute

Cecelia M. Klingele

Associate Reporter, Model Penal Code: Sentencing

Cecelia M. Klingele is an Assistant Professor at The University of Wisconsin Law School.  Her academic research focuses on criminal justice administration, with an emphasis on community supervision of those on conditional release.  She serves as a faculty associate of the Frank J. Remington Center and the Institute for Research on Poverty, and a research affiliate of the University of Minnesota Robina Institute's Sentencing Law & Policy Program.

Kevin Reitz

Reporter, Model Penal Code: Sentencing

Kevin Reitz is the James Annenberg La Vea Land Grant Chair in Criminal Procedure Law at the University of Minnesota Law School. In 1993, he organized the pilot meeting of the National Association of Sentencing Commissions, which has gone on to become a nationwide resource for states contemplating or undertaking the process of sentencing reform. He continues to work with NASC and with state sentencing commissions nationwide.

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