National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]

In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.

Under the MPC’s collateral consequences provisions, sentencing courts must see that defendants are informed about applicable collateral consequences at key stages of the criminal case, and have the power to remove mandatory consequences that impede a defendant’s reentry and reintegration.  They may also certify a defendant’s rehabilitation, and a court-issued certificate provides specific protection for employers and landlords against negligence lawsuits.

Sentencing commissions play an equally important institutional role under the 2017 MPC, in compiling collateral consequences and limiting their scope through the development of guidance for sentencing courts considering their removal.  In some ways, the MPC provisions resemble the template of the Uniform Collateral Consequences of Conviction Act (UCCCA), but in others they go further.  While the two proposals are similar in the role they give the sentencing court, the MPC limits the legislature’s power to enact and enforce collateral penalties, if only indirectly, through establishing standards for their removal in particular cases.  The MPC also improves the UCCCA model by limiting how discretionary decision-makers may take conviction into account.

While the MPC and UCCCA are directed primarily at states, Congress would do well to study their basic structure and specific provisions, to determine whether some of their elements could profitably be introduced into the federal sentencing system.  And, there is much that the U.S. Sentencing Commission could do to improve the administration of collateral consequences even without additional legislation, including compiling relevant federal laws and rules, developing guidance to ensure that defendants are adequately informed about the consequences of a guilty plea, and advising Congress about the need for new legislation and the form it might take.

Finally, the ALI initiative could further encourage federal courts to take steps even without specific statutory authority to help defendants deal with the burdens of a criminal record, either through non-conviction dispositions or informal certificates of rehabilitation.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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