COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS
PART I. DEFINITIONS AND OBJECTIVES
For purposes of this chapter:
(a) The term "collateral sanction" means a legal penalty, disability or disadvantage, however denominated, that is imposed on a person automatically upon that person’s conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence.
(b) The term "discretionary 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 the conviction.
(a) With respect to collateral sanctions, the objectives of this chapter are to:
(i) limit collateral sanctions imposed upon conviction to those that are specifically warranted by the conduct constituting a particular offense;
(ii) prohibit certain collateral sanctions that, without justification, infringe on fundamental rights, or frustrate a convicted person’s chances of successfully reentering society;
(iii) provide the means by which information concerning the collateral sanctions that are applicable to a particular offense is readily available;
(iv) require that the defendant is fully informed, before pleading guilty and at sentencing, of the collateral sanctions applicable to the offense(s) charged;
(v) include collateral sanctions as a factor in determining the appropriate sentence; and
(vi) provide a judicial or administrative mechanism for obtaining relief from collateral sanctions.
(b) With respect to discretionary disqualification of a convicted person, the objectives of this chapter are to:
(i) facilitate reentry into society, and reduce recidivism, by limiting situations in which a convicted person may be disqualified from otherwise available benefits or opportunities;
(ii) provide that a convicted person not be disqualified from benefits or opportunities because of the conviction unless the basis for disqualification is particularly related to the offense for which the person is convicted; and
(iii) create a mechanism for obtaining review of, and relief from, discretionary disqualification.
PART II. COLLATERAL SANCTIONS
The legislature should collect, set out or reference all collateral sanctions in a single chapter or section of the jurisdiction’s criminal code. The chapter or section should identify with particularity the type, severity and duration of collateral sanctions applicable to each offense, or to a group of offenses specifically identified by name, section number, severity level, or other easily determinable means.
The legislature should not impose a collateral sanction on a person convicted of an offense unless it determines that the conduct constituting that particular offense provides so substantial a basis for imposing the sanction that the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified.
(a) The rules of procedure should require a court to ensure, before accepting a plea of guilty, that the defendant has been informed of collateral sanctions made applicable to the offense or offenses of conviction under the law of the state or territory where the prosecution is pending, and under federal law. Except where notification by the court itself is otherwise required by law or rules of procedure, this requirement may be satisfied by confirming on the record that defense counsel’s duty of advisement under Standard 14-3.2(f) has been discharged.
(b) Failure of the court or counsel to inform the defendant of applicable collateral sanctions shall not be a basis for withdrawing the plea of guilty, except where otherwise provided by law or rules of procedure, or where the failure renders the plea constitutionally invalid.
(a) The legislature should authorize the sentencing court to take into account, and the court should consider, applicable collateral sanctions in determining an offender’s overall sentence.
(b) The rules of procedure should require the court to ensure at the time of sentencing that the defendant has been informed of collateral sanctions made applicable to the offense or offenses of conviction under the law of the state or territory where the prosecution is pending, and under federal law. Except where notification by the court itself is otherwise required by law or rules of procedure, this requirement may be satisfied by confirming on the record that defense counsel has so advised the defendant.
(c) Failure of the court or counsel to inform the defendant of applicable collateral sanctions shall not be a basis for challenging the sentence, except where otherwise provided by law or rules of procedure.
(a) The legislature should authorize a court, a specified administrative body, or both, to enter an order waiving, modifying, or granting timely and effective relief from any collateral sanction imposed by the law of that jurisdiction.
(b) Where the collateral sanction is imposed by one jurisdiction based upon a conviction in another jurisdiction, the legislature in the jurisdiction imposing the collateral sanction should authorize a court, a specified administrative body, or both, to enter an order waiving, modifying, or granting timely and effective relief from the collateral sanction.
(c) The legislature should establish a process by which a convicted person may obtain an order relieving the person of all collateral sanctions imposed by the law of that jurisdiction.
(d) An order entered under this Standard should:
(i) have only prospective operation and not require the restoration of the convicted person to any office, employment or position forfeited or lost because of the conviction;
(ii) be in writing, and a copy provided to the convicted person;
(iii) be subject to review in the same manner as other orders entered by that court or administrative body.
Jurisdictions should not impose the following collateral sanctions:
(a) deprivation of the right to vote, except during actual confinement;
(b) deprivation of judicial rights, including the rights to:
(i) initiate or defend a suit in any court under one’s own name under procedures applicable to the general public;
(ii) be eligible for jury service except during actual confinement or while on probation, parole, or other court supervision; and
(iii) execute judicially enforceable documents and agreements;
(c) deprivation of legally recognized domestic relationships and rights other than in accordance with rules applicable to the general public. Accordingly, conviction or confinement alone:
(i) should be insufficient to deprive a person of the right to contract or dissolve a marriage; parental rights, including the right to direct the rearing of children and to live with children except during actual confinement; the right to grant or withhold consent to the adoption of children; and the right to adopt children; and
(ii) should not constitute neglect or abandonment of a spouse or child, and confined persons should be assisted in making appropriate arrangements for their spouses or children;
(d) deprivation of the right to acquire, inherit, sell or otherwise dispose of real or personal property, except insofar as is necessary to preclude a person from profiting from his or her own wrong; and, for persons unable to manage or preserve their property by reason of confinement, deprivation of the right to appoint someone of their own choosing to act on their behalf;
(e) ineligibility to participate in government programs providing necessities of life, including food, clothing, housing, medical care, disability pay, and Social Security; provided, however, that a person may be suspended from participation in such a program to the extent that the purposes of the program are reasonably being served by an alternative program; and
(f) ineligibility for governmental benefits relevant to successful reentry into society, such as educational and job training programs.
Part III. DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS
The legislature should prohibit discretionary disqualification of a convicted person from benefits or opportunities, including housing, employment, insurance, and occupational and professional licenses, permits and certifications, on grounds related to the conviction, unless engaging in the conduct underlying the conviction would provide a substantial basis for disqualification even if the person had not been convicted.
The legislature should establish a process for obtaining review of, and relief from, any discretionary disqualification.
Each jurisdiction should encourage the employment of convicted persons by legislative and executive mandate, through financial incentives and otherwise. In addition, each jurisdiction should enact legislation prohibiting the denial of insurance, or a private professional or occupational license, permit or certification, to a convicted person on grounds related to the conviction, unless engaging in the conduct underlying the conviction would provide a substantial basis for denial even if the person had not been convicted.
Copyright American Bar Association.