Photo by iStockphoto.com / Zemdega
When deciding whether or not to plead guilty, many defendants - and their lawyers - are not fully aware of all the collateral consequences that result from a criminal conviction. The range of consequences can be staggering and impact an individual's efforts to find housing, get a job or apply for state licenses or benefits. Often offenders find out too late, which complicates their efforts to re-enter society productively.
Fixing this problem has been a passion for Richard Cassidy, a civil litigator at Hoff Curtis, based in Burlington, Vt. Cassidy is a commissioner on the Uniform Law Commission (ULC), a 118-year-old organization that drafts legislation for states in order to "bring clarity and stability to critical areas of state statutory law," according to the ULC's site. All states have commissioners on the ULC.
Cassidy led the ULC's efforts to draft and approve the Uniform Collateral Consequences of Conviction Act, which will now go to state legislatures for adoption. The act would ensure that defendants are aware of all of the collateral consequences of their conviction and allow them to apply for remedies in specific situations.
Lawdragon: How did you become involved with the ULC?
Richard Cassidy: I guess some would say that I am a "law nerd." I had heard about the Uniform Law Commission, then known as the National Conference of Commissioners on Uniform State Laws, in law school when I took a required course on the Uniform Commercial Code. Around that time, I was also taking Constitutional Law and Federal Jurisdiction and was interested in the unique role of the Uniform Laws Commission in persevering and developing federalism, which in my view is part of the genus of the United States Constitution.
My interested renewed when I followed the Uniform Law Commission process when it considered what was adopted as the Model Employment Termination Act.
Some years later, after Howard Dean became Governor of Vermont, I wanted to play some part-time role in state government. I asked to be appointed to the Commission and Howard appointed me. That was in 1994, and I have been a member ever since. At this point, I guess, I'm a lifer!
LD: When did the ULC begin taking action on the collateral consequences issue? Can you describe a little how the momentum formed for this act?
RC: I am proud to say that it was my idea. When the American Bar Association's House of Delegates took up a proposed ABA Standard on Criminal Justice on Collateral Consequences, I was a member of the House and I read the proposal and listened to the discussion. I already had exposure to the social problems that result from society's efforts to protect itself from crime and criminals, as I had worked in a prisoners' rights law project in law school in New York State.
I thought that the ABA Standards were among the most important subjects I had seen the ABA take up. I thought about whether the Uniform Law Commission process could play a role in solving the underlying problem - that our efforts to protect ourselves are having the unintended effect a creating an underclass of convicted persons in the individual states.
I talked with one of my Vermont ULC colleagues who also happened to be in the House of Delegates, Peter Langrock, and he agreed that the Commission might have a useful role to play. I took it to the President of the Commission, Fred Miller, and with his support, to the ULC Committees that choose new projects. They agreed that the ULC should establish a study committee to assess the question.
I thought that would be the end of my intense involvement with the project, but I was wrong. The President asked me to chair the study committee, and eventually a decision was made to go forward with a drafting committee with instructions to draft an act that was procedurally, rather than substantively, oriented.
LD: Can you discuss some of the key problems caused by the ignorance of collateral consequences?
RC: I think of these problems as falling into three categories. First, policymakers, mostly legislators, don't know, and really don't have the opportunity to know, what the full range of collateral consequences that have been enacted, usually one at a time, amount to. So when the press covers the latest sensational crime story, someone thinks would it be a good idea to enact yet another collateral consequence. The result, in many states, is that there are hundreds of statutes, and many more regulations, that apply based upon conviction of a crime.
Second, participants in criminal prosecutions usually don't know what the collateral effects of a conviction will end up being. Many defendants think they can plead guilty, take the punishment and walk away. Their lawyers, even if they think about the collateral impacts, have no place to turn to readily find the information, because collateral consequences are spread throughout a states' statutes, regulations, local ordinances and even agency practices, often unwritten. Naturally prosecutors and judges can't effectively take into account what they don't know.
Third, the individual results can be crazy. When I was in law school, I interviewed a state prison inmate who was about to be released. He had been trained in cosmetology in a program in one of the prisons. As he was preparing to be released, he found out that he could not get a license to work as a cosmetologist. The effect of the combination of the system's ignorance and his ignorance was the resources put into his rehabilitation had been wasted. Instead of equipping him for a new job and an honest way to make a living, it just made him angry.
My practice is mostly civil, and much of it is employment-related. Over the years, I have counseled several people for whom ignorance has created a big problem. An example that comes easily to mind involved a businessperson with an old conviction who had been successfully reintegrated for many years when he discovered that a newly enacted statute made continuing to work in his field a crime. He had helped to build a successful business employing many people and supporting himself and his family, but the law required that he walk away from his career or go back to prison.
LD: How does this act compare to other ULC acts in terms of how long it took from start to finish within the ULC before being sent to the states?
RC: As a general rule, most ULC drafting projects are completed in two years from start to finish. It took us twice as long - four years - to finish this draft.
LD: What was the vote total and can you make any comment how it compares to other acts?
RC: The ULC is a consensus-oriented organization. Usually, the commission works something over so thoroughly that nearly all of the commissioners are willing to accept a draft, even if they don't agree with every last detail. In the end, most acts are adopted with only a few states, if any, voting against.
This act was more controversial, but we came pretty close to achieving consensus. Still there were few commissioners who vigorously opposed it. In the end, the Uniform Collateral Consequences of Conviction Act was adopted by the states and territories in the Commission by a vote of 47 to 4, with 1 abstention and 1 state not voting.
I think it's fair to say that the members of the drafting committee and the conference leaders who supported our efforts were delighted with this result.
LD: Is it less common for the ULC to deal with criminal matters, and did this pose any particular problems for this act?
RC: Although the ULC is seen as oriented towards commercial law, over the years it has developed uniform laws on many important criminal law subjects. I think the fact that we faced a more arduous route to adoption than most acts had more to do with the controversial nature of this project than it did with the fact that it relates to what I think of as the seam between civil and criminal law.
LD: What state agencies will be responsible for collecting this information on collateral consequences?
RC: The act leaves it up to each state or territory to decide what state agency will play this role in this process. Different states are likely to place this responsibility on different agencies depending upon what is appropriate. I should think that in most states the reviser of statutes or legislative counsel, or whatever organization that serves as the legislatures' legal staff, is the most likely agency to be designated. I suppose in some states, it will be the Attorney General.
Because Congress has adopted a statute requiring the National Institute of Justice to conduct a nationwide study of collateral consequences in language that closely tracks the language of the Uniform Collateral Consequences of Conviction Act, the initial burden on each state should be very light.
The act permits the states to rely upon the National Institute of Justice study. Each state will only have to bear the burden of keeping the collection up to date once it has been completed.
LD: For states that adopt this law, can you explain how defendants will be notified of the collateral consequences?
RC: We envision that a notice, usually in writing, will be given to the defendant at the time of the charge is delivered. The notice is in very simple language and is part of the text of the act itself. It really just introduces the idea. The expectation is that, at least for defendants who are represented by counsel, this will initiate a conversation about these issues.
By the time the act is in place, the National Institute of Justice study will be done, and a defense attorney will, for the first time, be able to find the information he or she will need to provide good advice to a defendant.
The act also requires that convicted persons be reminded about the idea at the time of sentence, and, if imprisoned, upon release from prison. The idea here is that such persons will, if reminded of their obligations, have a reasonable chance to find out what they need to know in order to comply with them.
LD: Can you explain how they can go about restoring some of their lost rights after conviction?
RC: The act sets up a two-step process: At sentencing a defendant can ask the sentencing judge for an "Order of Limited Relief." After sentencing, at any time, the defendant can make that request of the appropriate state agency, which would usually be a parole board, or clemency board.
In either case, the idea is relatively narrow relief aimed one or more specific collateral consequences, relating to employment, education, housing, public benefits, or occupational licensing, that can be granted if the decision-maker finds that the collateral sanction would, if left in place, impede the re-entry process and that relief would be unlikely to impair public safety.
The second step comes later. If, after five years from the later of conviction or release, a convicted person has done well, he or she can go to the agency and apply for a Certificate of Restoration of Rights. This Certificate would offer broad relief, with a few exceptions - such as those relating to sex offender registry statutes.
In either event, the relief afforded is modest: In effect it converts a collateral sanction (which is automatic exclusion from a right or benefit based on conviction) into what the act calls a "Discretionary Disqualification." So relief does not require a licensing board or similar governmental agency to extend a right or benefit to a person having an Order or Certificate. Instead, it requires that such a person receive individualized assessment from the governmental decision-maker and be considered without the stigma of conviction.
LD: Do you expect resistance by states because this requires an additional procedural burden on criminal systems, not only in the notification process but also in the petitions for relief that offenders can file?
RC: We think it's reasonable to expect that some legislators and other government officials will be concerned about both issues. Our argument is that these burdens are modest, that it's fair for the society which imposes collateral consequences in order to protect itself to bear these modest burdens and that the costs associated with failing to provide any relief are far greater.
LD: What is the big picture goal? Is it a hope that states will generally choose to impose fewer disadvantages on convicts once the entirety of consequences are known to all parties?
RC: First, if justice matters, the decision-makers in the criminal justice system should take collateral consequences into account when thinking about the extent to which an offender should be punished. This only makes sense when you realize that, ultimately, most defendants are not sentenced to prison. For them, perhaps even the first day after sentencing, the collateral consequences are more significant than the fine or term of probation that is the direct result of the sentence.
Second, from a policy perspective, collection of all statutory collateral consequences in one place should give policymakers who want to build a criminal justice system that is both smart and tough an opportunity to look at the whole picture as they are making decisions. Given the large number of people who have convictions, the huge number of collateral consequences that convicted persons face, and a lasting disabilities that those consequences create, we think many policymakers will choose not to impose more collateral consequences, or at least, if they do, they will adopt what we call "disqualifications," letting case by case, individualized decisions to be made based upon the individual circumstances of the convicted person in question.
Finally, very few states had any effective means of relieving a convicted person of collateral consequences once they have been imposed. The Uniform Act will create such a mechanism and give those convicted persons who deserve it a second chance.
LD: How do you go about advocating for this act now in your state? Do expect this to be more difficult than other acts you have pushed?
RC: Many ULC projects are seen by legislators as technically oriented and noncontroversial. The Uniform Act on the Collateral Consequences has important features that are technical in nature, such as clarifying the status of out-of-state convictions and relief measures.
But we understand that this particular act is different. We will have to overcome objections from some who think that, at every turn, we always need to make the system tougher.
But many of the law enforcement people we've talked with, including district attorneys, police, and judges, understand the need to make the system smarter. In my state, we are making a point to reach out to law-enforcement in advocating for the adoption of the act.
LD: Do commissioners who voted against approval of the act have any duty to advocate for it once it goes to the states?
RC: The answer is really no. Commissioners do have an obligation to pursue Uniform Acts in their home states, but that obligation is not without limits. If, in a commissioner's own judgment, the act is not appropriate for adoption in their state, they are not required to do anything.
LD: Do states often pick and choose elements from a proposed ULC act? For example, could they adopt the notification procedure but refuse to give convicts the right to petition for a restoration of rights?
RC: States do, from time to time, pick and choose from elements of a Uniform Act. One interesting example is the Uniform Probate Code. The act has had far more influence on the development of probate practice than would be suggested by the number of states which have adopted it. In many states, pieces and parts of the act have been adopted and that has improved the law in those states.
While we would prefer that states adopt the entire Uniform Act on the Collateral Consequences, it may be that certain elements of the act will prove more popular than others.