December 11, 2020

Reducing the Impact of Collateral Consequences of Convictions

Collateral consequences of criminal convictions, also called “collateral sanctions,” are legal penalties that take away rights, access to programs or services, or that impose another type of disadvantage that may not be part of a person’s sentence. When properly administered, such sanctions can play an important role in achieving articulable government objectives. But many such sanctions bear no relation to an underlying offense and undermine such goals. These sanctions may be technical disabilities such as the revocation of a driver’s license, or they can prevent employment, access to human services, or even the right to vote.

The ABA believes collateral sanctions should be explained before a person pleads guilty to an offense or at sentencing, and that there should be a formal process to appeal for relief from collateral sanctions. The ABA supports limiting or repealing collateral consequences, particularly when they no rational connection to the underlying offense. Formal guidance on the ABA’s position is captured in, but not limited to, the ABA Standards for Criminal Justice, Chapter on Collateral Sanctions and Discretionary Disqualification of Convicted Persons. https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_collateral_blk/#1.1

Federal Legislation

Fair Chance to Compete for Jobs Act of 2019, S. 387/H.R. 1076, enacted under P.L. 116-92, which would, among other things, require federal employers to postpone questions about a person’s criminal background until a conditional offer of employment is extended. The Clean Start Act, S. 423, Sen. Manchin (D WV), which would establish a process to seal records related to a nonviolent criminal offense committed by an individual whose substance use disorder is a substantial contributing factor in the commission of the offense. Fresh Start Act of 2019, H.R. 121, Rep. Cohen (D TN), which would establish a process to expunge enumerated criminal offenses. The Clean Slate Act, H.R. 2348, Rep. Blunt Rochester, which would establish a formal framework for sealing records related to certain federal offenses.

ABA Advocacy

ABA Opposition to Proposed Amendments to Optional Form 306 Concerning Prior Participation in Diversionary Programs

On May 1, 2019, ABA President Robert Carlson wrote to the Office of Personnel and Management in opposition to a proposal to require job applicants to disclose, regardless of position applied for, participation in any diversionary programs that did not result in a conviction. Carlson argued that the proposal was contrary to public policy in support of those programs and would undo the Administration’s own commitment to criminal justice reforms. Read more …