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.

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.

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Former Obama officials advocate against FBI checks by (some) employers

Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators.  His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.

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Copyright dispute roils federally-funded database of collateral consequences

Copyright-symbol-with-a-lockShould a compilation of collateral consequences mandated by federal law and prepared with federal funds be freely available to states and members of the public?  The Uniform Law Commission says yes, the American Bar Association says no.

In an article posted on May 18, the Wall Street Journal pulled back the curtain on an on-going dispute between the ULC and the ABA over copyright restrictions the ABA has imposed on data in the National Inventory of Collateral Consequences (NICCC).  The ULC is concerned that restrictions on access and use of the NICCC data are likely to stymie adoption of the Uniform Collateral Consequences of Conviction Act (UCCCA), which requires that states create their own inventories.  The ABA contends that the existence of other potentially conflicting databases would create undesirable confusion about the meaning of the law.  An excerpt from the WSJ piece (a companion to another article on collateral consequences published the same day), follows: Read more

More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible fOklahomauntitledor record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here.

Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.

Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.

The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more