In July of 2009, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved for the first time model legislation—the Uniform Collateral Consequences of Conviction Act—designed to facilitate offender reentry throughout the United States. A revised Act was approved in July 2010 and published on January 6, 2011. Model or uniform legislation such as this does not carry the force of law; the NCCUSL is an advisory organization only. Nevertheless, uniform acts approved by the NCCUSL have been, and continue to be, tremendously important in shaping the development of law across the country. The newly approved Uniform Collateral Consequences Act is currently under consideration in Nevada, West Virginia, and Wisconsin—it has important implications for Alaska law as well.
The NCCUSL was established in 1892 as a confederation of state representatives for the purpose of improving state law and promoting uniformity of legislation in areas of national importance. It is an outgrowth of an 1889 resolution by the American Bar Association recommending that the states appoint commissioners to meet with other state representatives on the development of uniform state laws. By 1912 each state was sending commissioners to an annual meeting. (John McClaugherty, “The Uniform Law Process: Lessons for a New Millennium,” 27 Oklahoma City University Law Review 535 (2002)). One hundred years later, the Conference has promulgated to the states more than 250 uniform acts. Among the better known are the Uniform Commercial Code, the Uniform Probate Code, and the Uniform Partnership Act, each of which has been adopted, with some revisions, in Alaska.
Conference commissioners must be lawyers, and members of at least one state bar. The states differ in their methods of appointing commissioners, although most provide for appointment by the governor. As a group, the commissioners include not only practicing lawyers, but law professors, judges, legislators, and legislative staff. Over the decades, the Conference has comprised some of the most highly respected members of the legal community, including among its ranks such luminaries as former President Woodrow Wilson, former Chief Justice William Rehnquist, former Justices Brandeis and Rutledge, and law professors John Wigmore, Samuel Williston, Roscoe Pound, and George Bogart. Alaska currently has a Conference delegation of seven, among them Chief Justice of the Alaska Supreme Court Walter Carpenti.
Overview of the Collateral Consequences Problem and the Proposed Act
The impetus for the Conference’s work on the Uniform Collateral Consequences Act is detailed in an issues memorandum presented to the drafting committee in July of 2005. It notes:
Both the criminal justice system and society as a whole are faced with managing the growing proportion of the free population that has been convicted of a state or federal felony offense. In a trend showing little sign of abating, the U.S. prison population has increased dramatically since the early 1970s.... In 2003, the Department of Justice estimated that if the 2001 imprisonment rate remained unchanged, 6.6% of Americans born in 2001 would serve prison time during their lives—this may be an underestimate given that the incarceration rate has increased every year since 2001....
In addition to those serving or who have served prison time, an even larger proportion of the population has been convicted of a criminal offense without going to prison.
Over 4 million adults were on probation on December 31, 2003, almost twice as many as the combined number on parole, in jail or in prison.
The growth of the convicted population means that there are literally millions of people being released from incarceration, probation and parole supervision every year. Of course, they must successfully reenter society or be at risk for recidivism. Although no one supports “coddling criminals,” society has a strong interest in preventing recidivism. An individual who could have successfully reentered society but for avoidable cause reoffends generates the financial and human costs of the new crime, expenditure of law enforcement, judicial and corrections resources, and the loss of the productive work that the offender could have contributed to the economy. (Preliminary Report Collateral Sanctions and Disqualifications Act, (2005).)
The report goes on to state that as the importance of facilitating reentry has increased, a number of legislative developments have conversely made successful reintegration more difficult than ever before.
For many years, a person convicted of, say, a drug felony, lost his right to vote for a period of time or for life, could not possess a firearm, and was barred from service in the military and on juries, state and federal, civil and criminal. If a non-citizen, the convicted person could be deported….
In recent years, [these collateral consequences] have been increasing. [For example], 1987 legislation made drug offenders ineligible for certain federal health care benefits; a 1991 law required states to revoke some drug offender’s driver’s licenses or lose federal funding…. In 1998, persons convicted of drug crimes were made ineligible for federal educational aid and for residence in public housing….
Like Congress, state legislatures have also been attracted to limiting the opportunities of convicted persons…. These laws limit the ability of convicted persons to work in particular fields, to obtain state licenses or permits, to obtain public benefits such as housing or educational aid, or to participate in civic life.
A second major development is the availability to all arms of government and the general public, via the Internet, of aggregations of public record information, including criminal convictions, about all Americans. Twenty years ago, an applicant might not have been asked for her criminal record when renting an apartment or applying for a job, and it would have been difficult for even an enterprising administrator to find, say, a 15 year old, out-of-state, marijuana offense. Now, gathering this kind of information is cheap, easy and common.
These legal disabilities, and the concomitant stigma of a criminal conviction, are termed collateral consequences because they are largely independent of an offender’s sentence by the judicial system. The fact that they are collateral does not make them unimportant. In fact, as the 2005 issues memorandum notes, in many instances these collateral disabilities are the most significant consequence of a criminal offense. “In state courts in 2002, 59% of those convicted of felonies were not sentenced to prison; 31% received probation and 28% jail terms.” Thus, in “a high percentage of cases, the real work of the legal system is done not by fine or imprisonment, but by changing the legal status of convicted persons” (emphasis added).
Despite the critical role that these collateral disabilities play in determining the future of those convicted of criminal offenses, few (if any) offenders fully understand the extent to which this web of state and federal legislation will affect their lives after they have completed their sentence. This is because these barriers are dispersed throughout a complex maze of state and federal statutes and administrative regulations in areas as diverse as professional licensing, fish and game control, and foster parenting qualifications. (See “The Hidden Impact of a Criminal Conviction: A Brief Overview of Collateral Consequences in Alaska” in the Fall 2007 issue of the Alaska Justice Forum.) Identifying the full array of disabilities a particular conviction might trigger would be daunting for legal professionals; for lay offenders and the general public the task would be nearly impossible. In a criminal justice system like ours, where plea bargains are the norm and due process hinges on defendants’ understanding the nature of their plea, this scattered multitude of collateral disabilities is deeply troubling.
The Uniform Collateral Consequences Act is intended to assist states in ameliorating the due process issues associated with such “hidden” collateral consequences, and reduce recidivism by limiting barriers to safe housing, education, and productive employment. As originally approved in July of 2009, the Act included multiple operative sections addressing issues ranging from “Identification, Collection, and Publication of Laws Regarding Collateral Consequences” (Section 4) to “Certificate of Restoration of Rights” (Section 10) to “Victim’s Rights” (Section 14). Revisions to the Act, approved in July 2010 and published on January 6, 2011, added a section related to imposition of discretionary disqualifications by decision-makers such as licensing boards and addressed issues related to the April 2010 opinion of the United States Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473. (The Court in Padilla held (7-2) that the Sixth Amendment right to advice of counsel includes for non-citizens the right to be informed whether a plea agreement carries with it the collateral risk that the offender may be deported.)
Table 1 presents an abbreviated description of the operative provisions of the 2010 Uniform Act.
Implications for Alaska
Rehabilitation and reintegration of the convicted have been components of public policy in Alaska since statehood; the principle of reformation is one of the five considerations on which our Constitution requires that administration of the criminal justice system be based. (The others are public safety, community condemnation of the offender, rights of victims, and restitution from the offender. See Alaska Constitution art. I, § 12.) In recent years this policy has become a priority for many, and efforts to reduce the impact of collateral consequences and facilitate offender reentry within the state are increasingly visible.
In 2007, then-Chief Justice Fabe of the Alaska Supreme Court established the Criminal Justice Working Group, an organization comprising representatives from justice agencies across the state. One of the group’s key areas of focus is reducing recidivism. To further this end, the Working Group established a subcommittee, the Alaska Prisoner Reentry Task Force. Its goal is simple, to see that “individuals who are incarcerated do not return to custody.”
The task force met in April 2010, and set up a number of working groups, many of which are addressing the difficulties posed in Alaska by state legislative barriers to re-entry. The subcommittee on employment restrictions, for example, is working to “identify laws that are barriers to housing, employment, and other needs of persons with felony convictions,” and to “consider what changes might be possible, in the context of public safety, and rehabilitation of the offender.” (see “Alaska Prisoner Re-entry Task Force” in the Spring 2010 issue of the Alaska Justice Forum). In Alaska, these barrier laws number in the hundreds. (See the UAA Justice Center Working Paper “The Hidden Impact of Criminal Convictions,” 2007.) The Task Force has recently completed “Alaska’s 5-Year Prisoner Reentry Strategic Plan, 2011–2016,” which was released in late February 2011. The document includes a lengthy chapter on collateral consequences and recommendations to address this issue.
Alaska Supreme Court Justice Walter Carpeneti highlighted the importance of this work in his 2010 State of the Judiciary Address:
Probably no problem is of greater concern to us at this time than the alarmingly high rates of recidivism in our state. Fully 66% of offenders—two-thirds of those incarcerated—will reoffend and return to jail at some point in their lives. This is an astounding number, and one that must motivate all of us to examine what causes so many Alaskans to spend their lives cycling in and out of the criminal justice system.
He specifically noted that those offenders without resour-ces for things like housing and employment may fall “quickly into the criminal behaviors that caused them to be jailed in the first place.” (See Figure 1.)
The Uniform Collateral Consequences of Conviction Act directly addresses these concerns and provides a balanced approach to facilitating successful reintegration of those with criminal convictions, while retaining due regard for victims’ rights and the state’s legitimate interest in punishment and expression of community condemnation. If adopted substantially as drafted in the Uniform Act, the various sections would mitigate some of most pressing problems associated with barrier statutes and regulations in Alaska.
For example, adoption of sections four through six would help ensure that judges, prosecutors, defense counsel, and those charged with a criminal offense may readily see the full array of collateral consequences a conviction or plea might carry. It would also ensure that offenders have the opportunity to consider these consequences before entering a plea. Finally, these sections would allow lawmakers and regulators considering adoption of new or expanded barriers to evaluate the effect of the proposed measures in the context of the broad range of existing impediments to reintegration.
Where state law establishes a potential barrier to employment or some other activity based on a criminal conviction, and there is ambiguity whether the barrier is automatic or whether state officials may exercise discretion in imposing it, sections seven and eight would create a presumption against automatic imposition of the barrier.
Together, sections 10 through 13 would establish for the first time in Alaska an administrative means by which those convicted of criminal offenses might obtain relief from some of the collateral consequences of their conviction. The availability of such relief would hinge on a period of good behavior, and would not prevent a third-party from considering the facts of the offender’s misconduct in making any decision concerning the offender.
Finally, section 14 is directed toward the business community; it is intended to encourage employers to hire offenders by reducing the legal risks associated with negligent hire or negligent supervision lawsuits. Under section 14, an employer who hired a former offender holding an order of relief or certificate of restoration of rights could introduce the order or certificate as evidence of due care in a lawsuit based on the malfeasance of the offender. While none of these sections standing alone will eliminate the problems associated with state barrier laws, together this panoply of initiatives can reduce the extent to which such laws impede offenders’ efforts to build productive lives post-conviction or incarceration.
Individuals released from incarceration return to communities throughout Alaska; thus we all have an interest in promoting the success of every former offender (Table 2). Palliative measures such as those just discussed are particularly critical, however, for addressing one of the most troubling aspects of criminal justice in Alaska—that is the disproportionate number of Alaska Natives incarcerated. The Alaska Department of Corrections 2009 Offender Profile identified Alaska Natives as accounting for close to 36 percent of the overall offender population, though they comprise just 16 percent of the state’s general population. (See “Alaska Offender Profile 2009” in the Winter 2010 issue of the Alaska Justice Forum.) (African-Americans are also incarcerated at a disproportionate rate.) Although the causes of this disparity are open to question, there is no doubt that the Alaska Native community (like other minority groups throughout the country) disproportionately suffers the cumulative effect of the hundreds of state and federal laws that limit former offenders’ access to many types of employment and educational and other government benefits. The effects of the associated poverty and social stigma can reverberate through several generations. (See Figure 2.)
Rates of incarceration in the United States have reached unprecedented levels; at the same time, the proliferation of municipal, state, and federal barrier laws has dramatically increased the challenges faced by individuals as they complete their sentences, move back into the community, and seek housing and employment. (See Figure 3.) Those who have been incarcerated, and those who depend upon them for support, face enduring financial, social, and psychological repercussions stemming from the fact of conviction. But it is not only offenders and their families who suffer the effect of these collateral consequences. Lack of meaningful employment is one of the strongest predictors of recidivism.
Thus, communities have a strong public safety, if not humanitarian, interest in facilitating the successful reintegration of these individuals. Offenders who find stable employment to support themselves and their families contribute to the state’s economic infrastructure, reduce social welfare costs, are able to pay restitution to victims, and pose a reduced threat to others. Given this, policymakers should consider measures to alleviate unnecessary barriers to the employment and reintegration of those transitioning from incarceration back into Alaska’s communities—evaluation of the proposals in the Uniform Collateral Consequences Act would be a first step.
Deb Periman, J.D., is a member of the Justice Center faculty.