Similar to the Uniform Law Commission, of which you are all familiar, the American Law Institute is, according to its website, “the leading independent organization in the U.S. producing scholarly work to clarify, modernize, and improve the law.” The ALI will shortly be approving an amendment to its Model Penal Code (MPC) to include a provision on collateral consequences. The Model Penal Code, first established in 1962 and amended over time, has uneven application in state laws, but “the Model Penal Code, more than any other code, is the closest thing to being an American criminal code.” Robinson, AN INTRODUCTION TO THE MODEL PENAL CODE.
The ALI’s proposed amendments to the MPC do not likely impact background checks, but it is worth noting that the ALI and the ULC are two national groups that have jumped in to the fray on matters that impact ex-offenders and job prospects, along with the USCCR’s hearing today. Of course, CDIA does not oppose lowering barriers to jobs, professions, or occupations, but we feel that employers should have the full array of an applicant’s criminal history in from of them before making a decision that is appropriate for the employer and legal for the applicant.
The ALI amendments are to be voted on by the full ALI next week, will create a new Section 6x in the MPC. As noted by the ALI summary of the MPC amendments, this new section
requires the sentencing commission to collect and maintain information on all collateral consequences as defined in § 6x.01, whether mandatory or discretionary, and to make that information accessible to the public. It also requires the commission to regularly maintain and publish its compendium, making it a reliable and easily accessible resource for individuals and their lawyers at every stage of a criminal prosecution, from charging through sentencing.
The new section is as follows:
6x.02. Sentencing Guidelines and Collateral Consequences.
(1) As part of the sentencing guidelines, the sentencing commission [or other designated agency] shall compile, maintain, and publish a compendium of all collateral consequences contained in [the jurisdiction’s] statutes and administrative regulations.
(a) For each crime contained in the criminal code, the compendium shall set forth all collateral consequences authorized by [the jurisdiction’s] statutes and regulations, and by federal law.
(b) The commission [or designated agency] shall ensure the compendium is kept current.
(2) The sentencing commission shall provide guidance for courts considering petitions for orders of relief from mandatory collateral consequences under §§ 6x.04 and 6x.05. The commission’s guidance shall take into account the extent to which a mandatory consequence is substantially related to the elements and facts of an offense and likely to impose a substantial and unjustified burden on a defendant’s reintegration.
The ALI summary continues:
Information collected. In many jurisdictions, the number of collateral consequences that attach upon conviction number in the hundreds. The laws that authorize these consequences are scattered throughout statutes and regulations; aggregating such a high volume of information is no easy task, particularly given the pace at which such legislation is passed and modified. The information that subsection (1) requires the commission to gather is similar in nature and scope to that required by the Uniform Law Commission’s Uniform Collateral Consequences of Conviction Act (UCCCA) (2010), § 4 (requiring “designated governmental agency or official” to “identify . . . any provision . . . which imposes a collateral sanction or authorizes the imposition of a disqualification” and “make that information publicly available, along with a link to an online compilation of the most recent collection of the collateral consequences imposed by federal law and any provision of federal law that may afford relief from a collateral consequence”).
While such a task is daunting, it is not impossible and has been made simpler by recent research efforts. In 2007, Congress directed the National Institute of Justice to compile a 50-state inventory of collateral consequences. Through the efforts of the American Bar Association, the National Inventory of the Collateral Consequences of Conviction is now available online to the public. It provides a listing of all mandatory collateral consequences and discretionary collateral consequences authorized by statute or administrative regulation in every state and in the federal system. Although this resource is one that will require continuous updating, it has removed many of the logistical barriers to the collection of such information that previously existed.
Distribution. There are several existing examples of web-based compilations. The American Bar Association’s National Inventory of Collateral Consequences, www.abacollateralconsequences.org, uses a website to provide a searchable database of information on collateral consequences in a number of jurisdictions, as does Ohio’s Civil Impacts of Criminal Convictions (CIVICC) database.
Guiding courts on petitions for relief. In many states, administrative licensing agencies are called upon to make discretionary decisions about the imposition of employment restrictions for people with criminal records. In doing so, many are guided by statutory standards that permit the imposition of employment and licensing restrictions only when a crime is substantially related to the work for which a license or permit is sought. See generally Margaret Colgate Love, 50-State Comparison Consideration of Criminal Records in Licensing and Employment (2016).In determining whether a substantial relationship exists, states look to factors such as the nature of the crime; the relationship of the crime(s) to the activities authorized by the license; the relevance of any conviction to the fitness of the licensee to perform the occupation authorized by the license; the length of time since the conviction; and the behavior and activities of licensee following conviction.