Amending the Uniform Collateral Consequence of Conviction Act

Criminal Law Practitioner Volume 2 Issue 2 Article 5 2015 Amending the Uniform Collateral Consequence of Conviction Act Stephen A. Saltzburg George Washington University Law School Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons Recommended Citation Saltzburg, Stephen A. (2015) "Amending the Uniform Collateral Consequence of Conviction Act," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 5. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/5 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Saltzburg: Amending the Uniform Collateral Consequence of Conviction Criminal LawAct Practitioner AMENDING THE UNIFORM COLLATERAL CONSEQUENCE OF CONVICTION ACT by Stephen A. Saltz burg Introduction The National Conference of Commissioners on Uniform State Laws (also known as The Uniform Law Commission) approved and amended the Uniform Collateral Con- sequences of Conviction Act in 20 0 .1 The Commission recognized that burdens imposed on individuals convicted for violation of federal and state criminal laws often made it difficult for those individuals to successfully re-enter society after serving their criminal sentences. The Commission wrote: The growth of the convicted population means that there are literally millions of people being released from incarceration, probation and parole supervision every year. They must successfully reintegrate into society or be at risk for recidivism. 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 en1 Uniform Collateral Consequences of Convictions Act, National Conference of Commissioners on Uniform State Laws (amended 2010) [the Act] availableat http://www.uniformlaws.org/shared/docs/collateralconsequences/ucca_final_10.pdf forcement, judicial and corrections resources, and the loss of the productive work that the individual could have contributed to the economy. Society also has a strong interest in seeing that individuals convicted of crimes can regain the legal status of ordinary citizens to prevent the creation of a permanent class of "internal exiles" who cannot establish themselves as law-abiding and productive members of the community. [It] has become increasingly difficult to avoid or mitigate the impact of collateral consequences. Most states have not yet developed a comprehensive and effective way of "neutralizing" the effect of a conviction in cases where it is not necessary or appropriate for it to be decisive. In almost every U.S. jurisdiction, offenders seeking to put their criminal past behind them are frustrated by a legal system that is complex and unclear and entirely inad- Published by Digital Commons @ American University Washington College of Law, 2014 Summer 2015 Washington College of Law 1 31 Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 5 Criminal Law Practitioner The Commission accurately identified the problems that collateral consequences pose for any person seeking to resume a normal life after being convicted of a crime and after serving the criminal penalty a jurisdiction exacts as a consequence of the conviction. The reality for many is that they continue to pay for their crimes without the normal players in the criminal justice system being aware of the impact of collateral consequences. The prosecutor and criminal defense counsel finish their work once a conviction becomes final and a defendant is placed under the control of either a court in the form of judicially supervised probation or a correctional system in either jail or prison. The court generally finishes its work when a defendant completes probation, and the correctional system finishes its work when a convicted defendant is finally released from incarceration and completes any post-incarceration period of parole or supervised release. Having accurately identified the problems confronting a convicted person seeking to re-enter a community, the Commission makes the following assertion: "[t]he criminal justice system must pay attention to collateral consequences. If the sentence is a reliable indicator, collateral consequences in many instances are what is really at stake, the real point of achieving a conviction."' The Commission's reasoning for this assertion is based on the fact that in 2004, 6o% of individuals convicted of felonies in state courts were not sentenced to prison. Instead, 3o% of those individuals were sentenced to probation or other non-incarceration alterId. at 1-4. The Prefatory Note is not part of the 2 legislation that the Commission recommends to the states, but it does purport to set forth the justifications for that legislation. It remains on the Commission's website and presumably represents the Commission's official position on the rationales for the Act. Id. at 4. 3 https://digitalcommons.wcl.american.edu/clp/vol2/iss2/5 32 Washington College of Law Summer 2015 natives, and the other 3 o% received jail rather than prison terms. This, according to the Commission, means that "[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 individuals." Many collateral consequences of conviction are unnecessary and could actually have the perverse effect of encouraging convicted individuals to pursue additional criminal acts once they discover that many lawful means of supporting themselves and their families are unavailable to them. But the Commission's assertion as to "the real point of achieving a conviction" can be read two ways, and neither interpretation finds support in the data relied on by the Commission. One way to read the assertion is that the Commission contends that the criminal justice system is not set up to protect public safety, deter crime, encourage rehabili tation and discourage recidivism, and is actually intended to create a second class category of people, by convicting them of criminal acts and relegating them forever to second class status. Such a stretch would cast doubt on the motives of not only legislators throughout the country, but also on lawyers and judges who participate in the criminal justice system in the belief that it serves legitimate penal purposes. - . equate to the task. As a practical matter, in most jurisdictions people convicted of a crime have no hope of ever being able to fully discharge their debt to society ... The other reading of "the real point of achieving a conviction" is the notion that probation, and perhaps jail sent (...truncated)