Tag: Uniform Law Commission

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. Read more

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. Holder’s former chief of staff, Margaret Richardson, now counsel to his firm Covington and Burling, serves on Uber’s safety advisory board. Former Congressman Howard Berman, also with Covington, has been working on behalf of Uber to defeat similar measures under consideration in California. Former Obama campaign manager David Plouffe is a “strategic adviser” for Uber and a member of the company’s board of directors. Uber and Lyft have historically fought the mandated fingerprinting that many municipalities require of taxi operators, arguing that their own screening methods are better suited to a business model that relies on the fast recruitment of large numbers of drivers.  Uber pulled out of Austin, Texas, rather than comply with driver screening requirements imposed by that city. Holder’s fairness arguments seem to have equal application to other professions whose employees are screened by fingerprint based background checks.  Efforts to improve the accuracy of FBI records have made little headway in Congress over the years, because of the cost of policing state record-keeping.  At the same time, background screening providers have lobbied against regulatory measures that would limit what they can report to employers and licensing entities. In a few weeks the Uniform Law Commission will be considering a model law on accuracy of criminal records, and the arguments made by Uber’s high-profile lobbyists will likely be taken into account.  On the table will be a “decay” feature that would preclude consideration of arrest records not resulting in conviction after a oeriod of time.  If adopted and enforced by states, such a provision would go a long way toward fixing the problems in FBI records identified by Mr. Holder. 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

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 for 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 removing legal barriers and providing reassurances to employers and other decision-makers.  Judicial certificate programs have been enacted in the past year by Vermont and Rhode Island, following similar programs enacted in 2012 in Ohio and North Carolina. This more transparent “forgiving” relief tends to apply to a broader range of offenses than expungement, and may meet less resistance from law enforcement, business and the media than record-closing laws. Mainstream law reform organizations like the Uniform Law Commission and the American Law Institute have adopted the “forgiving” as opposed to the “forgetting” model of relief represented by expungement and sealing statutes.  Vermont is the first state to enact the Uniform Collateral Consequences of Conviction Act in its entirety, as described here.  The ALI’s approval of the Model Penal Code: Sentencing collateral consequences provisions is described here. A 50-state summary chart of judicial relief provisions, prepared for the NACDL Restoration of Rights Project, is available here.  The Wall Street Journal will publish a national study of expungement laws sometime in the next few weeks. Read more