Tag: uccca

New Mexico a new leader in criminal record reforms

This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law. For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021. Expungement and collateral consequences relief Two years ago, New Mexico enacted a comprehensive expungement law that extended to most non-conviction records after a one-year waiting period, and to conviction records for all but the most serious violent and sexual crimes after conviction-free waiting periods ranging from two to ten years upon a court finding that “justice will be served.” (See the New Mexico profile of our Restoration of Rights Project for more details.) This year, New Mexico enacted SB 2, described in our report last month on marijuana legalization and expungement, which will automatically expunge a wide range of marijuana arrests and convictions. In another major development, New Mexico became the second state (following Vermont) to adopt most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), by enacting SB 183. New Mexico’s UCCCA supplements its expungement laws in several ways, by authorizing relief from collateral consequences as early as sentencing, and by recognizing out-of-state record relief. It requires collection of all collateral consequences in state law and their publication on the internet. It requires defense counsel to notify their client about mandatory collateral consequences in preliminary proceedings and prior to entering into a plea, and the court and other government agencies are required to confirm such notice at sentencing and on release. Section 10 of New Mexico’s UCCCA authorizes the court on petition, at or after sentencing, to relieve one or more mandatory collateral consequences, “if granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or occupational licensing” and generally facilitate the defendant’s reintegration. A Section 10 order is “evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued if the person knew of the order at the time of the alleged negligence or other fault.” Perhaps the most unusual and forward-looking features of New Mexico’s UCCCA, also adopted by Vermont, involve the relief extended to individuals with federal and out-of-state convictions: state agencies are required to recognize relief from other jurisdictions, and state courts are authorized to grant Section 10 relief to individuals with federal and out-of-state convictions. These steps toward coordinating relief across jurisdictions will hopefully not be lost on other state legislatures.  As CCRC’s board chair Jack Chin recognized in his introduction to our survey of the national landscape of record relief last fall, In a mobile, federal society, relief must be coordinated across jurisdictions, including within a single state. Most jurisdictions impose collateral consequences based on out-of-jurisdiction convictions, but it is not so clear that they give effect to out-of-jurisdiction relief or open their own relief systems to outsiders. People should not, ideally, be required to seek relief from multiple jurisdictions to avoid collateral consequences flowing from a single conviction. The New Mexico UCCCA excepts certain consequences related to sex offenses, driver’s license suspension, firearms dispossession, and law enforcement certification. The law is effective January 1, 2022, but will not affect imposition of a collateral consequence until six months after publication of the consequences provided for in Section 4. Public employment and occupational licensing The third new law, discussed in a posting last week, revised New Mexico’s 1970’s-era law regulating public employment and licensure to prohibit consideration of many different types of convictions, including those that have been expunged or pardoned, juvenile adjudications, and convictions that are “not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” The new law also prohibits consideration of misdemeanor convictions by public employers and licensing agencies, including even convictions involving sexual or violent conduct except in the narrowest circumstances, giving New Mexico the broadest misdemeanor protections in the nation.  (New Mexico’s public employers and licensing boards were already prohibited under existing law from considering non-conviction records, and felony convictions that were not “directly related” to the employment or occupation at issue.) Relief from court debt Another noteworthy new law, though not directly providing for record relief or restoration of rights, significantly limits the burdens imposed by court debt, particularly for juveniles. HB 183 requires the court to pay the cost of court-appointed counsel, as well as the cost of a court-appointed guardian ad litem and witness travel in juvenile cases. It also bars imposition of any court costs, fees or fines on juveniles. Fines and fees and other court costs are not only a significant burden on individuals and communities, but they may also serve as barriers to restoring voting rights, obtaining expungement, and pursuing economic opportunities. Other relevant legislative action New Mexico’s legislature left a House-passed bill on the table that would have restricted disenfranchisement to the period of actual incarceration.  It would also have directed efforts to encourage people leaving prison to register to vote.  We hope the legislature will return to the issue of voting when it reconvenes. Read more

Copyright dispute roils federally-funded database of collateral consequences

Should 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: The idea for a national inventory of collateral consequences grew from model legislation created by the Uniform Law Commission called the Uniform Collateral Consequences of Conviction Act. The model bill, finalized in 2010, requires states that enact it to take inventory of collateral consequences within their borders and to create a legal mechanism by which some ex-offenders can petition to have sanctions lifted.   The drafters of the model legislation sought federal assistance for a national database that states could use as a foundation for their own, said Richard T. Cassidy, a Vermont lawyer and ULC commissioner. That led to Congress passing a bill in 2007 that directed the Justice Department’s research arm, the National Institute of Justice, to conduct the inventory. The NIJ outsourced the work to the ABA. In the spring of 2014, as work on the database was wrapping up, the American Bar Association added a copyright notice to the database website. Under the terms, data downloading and replication of the website is permitted under a revocable license from the ABA, but only on certain conditions.   Harriet Lansing, president of the Uniform Law Commission, wrote to ABA President William C. Hubbard in February, saying the restrictions were  “contrary to the interests of the ULC in seeing its laws enacted by the states” as well as inconsistent with the federal law that authorized the creation of the database.   “We do not believe that Congress would have wanted states to have to start from scratch in building their own state-specific inventories, after nearly a million dollars in federal funds had been expended to create a national database that was intended precisely for this purpose,” Ms. Lansing wrote. Margaret Love, who was an adviser to the ABA project and founded the Collateral Consequences Resource Center, was more blunt: “Experience with monopolies — especially state-sanctioned ones — indicates that they inevitably lead to deterioration of quality and service. This appears to be happening before our eyes.”   In response, Mr. Hubbard wrote that the copyright restrictions ensure consistency and will prevent confusion by users. The existence of other, derivative databases that depart from the ABA database in technical and other ways “may create uncertainty as to the meaning and application of the data.”   The ABA has funding to maintain the database for two more years, Mr. Saltzburg said. The ABA’s claim that its copyright is necessary to ensure that the public is not misled is ironic.  This is because, despite the recent infusion of new government grant money, the ABA appears to be making little effort to ensure that the NICCC is complete and up to date. In the past 18 months, states have enacted dozens of new laws and rules that are not reflected on the NICCC website, and many existing entries are in need of amendment. Data from only six states is current through 2014, and numerous consequences have been inexplicably dropped from the website. Even if the NICCC were a more reliable source of information about collateral consequences, states need to be able to create and publish their own official inventories, as required by the Uniform Act.  (The revised sentencing articles of the Model Penal Code approved by the American Law Institute in 2014 also require states to create their own inventories.)  As the ULC points out in its letter to the ABA, Congress intended the states to be able to use the federally-funded inventory for their own purposes in dealing with an enormously important public policy issue.  But this congressional purpose will be frustrated as long as the ABA is permitted to control access to the NICCC data.  It is not clear how long that will be, since the Justice Department has refused to respond to FOIA requests and other inquiries about its plans for the NICCC going forward. In the interest of full disclosure, this organization is among several that has a FOIA request pending with Justice for information about the future of the NICCC.  The CCRC has also written to Justice asking it to institute a competitive process to determine how the NICCC is administered and maintained in the future, regardless of whether additional federal funding is made available for this purpose.  To date it has had no response from Justice to these inquiries. Read more