ABA COMMISSION ON EFFECTIVE CRIMINAL SANCTIONS

NEWS

The work of the Commission on Effective Criminal Sanctions is being continued by the ABA Criminal Justice Section through its Reentry Committee. The contents of this page are being moved to the Reentry Committee page.

Click here for the Criminal Justice Section Reentry Committee Home Page.

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Roundtable on 'Second Look' Sentencing Reforms

On December 8, 2008, the ABA Commission on Effective Criminal Sanctions sponsored a roundtable conference in Washington, D.C., to discuss ways to reduce the prison terms of people convicted and sentenced for federal crimes. The authorities that permit reduction of the court-imposed sentence are known collectively as "second look" provisions, a term that originated in the project to revise the sentencing articles of the Model Penal Code. Second look provisions include those that authorize reduction of a particular prisoner's term in extraordinary circumstances, such as executive clemency, and those that are available on a more routine basis to all or most similarly situated prisoners, such as parole or good time. The roundtable format involved brief presentation of papers followed by a discussion among participants at the roundtable moderated by Jeremy Travis, President of John Jay College. Justice Anthony Kennedy joined the roundtable for part of its afternoon session. The report of the roundtable and papers prepared for the conference are posted here, and will be published in the Federal Sentencing Reporter. An additional paper by Dora Schriro on good timewill also be published.

Collateral Consequences of Conviction in Federal Laws and Regulations

The ABA Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia are pleased to present Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations. This study is an outgrowth of both entities' work on the effect of a conviction record on the availability of a wide range of benefits and opportunities, which in turn determines a person's likely ability to rebuild his or her life after a criminal conviction. While the study is first and foremost a compilation, and its presentation primarily descriptive rather than analytical, we hope that it will serve as a useful tool for criminal justice practitioners (including defenders, judges, and prosecutors); for persons seeking information about the legal rights and responsibilities of people who have a conviction record; and for advocates, legislators, and policymakers in determining which collateral consequences are reasonable and appropriate responses to public safety concerns, and which are not and what can or should be done to avoid or mitigate them.

Work on this federal study has been supported by a generous grant from the Open Society Institute. We were fortunate that Kelly Salzmann, the author of the PDS study of collateral consequences affecting people with convictions in the District of Columbia, was willing to take the laboring oar in preparing it. Through her experience as PDS' Community Reentry Program Coordinator, Kelly understood the importance of such a study for defenders in advising clients. She also understood the importance of making the study user-friendly for all criminal law practitioners, for judges and legislators, and for policy-makers studying the impact on recidivism rates of what has been described as a web of invisible punishment. Working for only a few hours a week in spare time from her day job, Kelly completed an extraordinary amount of work in a relatively brief period of time.

The origins of this project can be traced to the ABA's promulgation in 2003 of a new chapter of its Criminal Justice Standards that called on each U.S. jurisdiction to collect and analyze the collateral consequences in its laws and regulations. See Standard 19-2.1 of the ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (2003). The ABA Standards identified two types of collateral consequences: "collateral sanctions," defined as penalties imposed automatically upon conviction, and "discretionary disqualifications," defined as penalties that are authorized but not required to be imposed. This distinction between automatic and discretionary collateral consequences was carried forward into a uniform law presently under consideration by the National Conference of Commissioners on Uniform State Laws, and more recently into Section 510 of the Court Security Act, both of which also call for a comprehensive inventory and study of collateral consequences.

The study describes the collateral consequences of a felony conviction arising under federal statutes and regulations. These consequences apply to felony convictions (or their equivalent) obtained in state, federal, and territorial courts, and in courts martial. Except where otherwise noted, they generally do not apply to misdemeanors, juvenile adjudications, or convictions in foreign jurisdictions or tribal courts. The issue of effective dates of particular disabilities, including retroactivity, is not addressed in any detail. While pains have been taken to identify all collateral consequences, there are certainly a few that have been missed.

The study also does not give a complete picture of the provisions for relief from federal collateral consequences. While federal consequences apply generally to all criminal convictions, state or federal, the provisions for avoiding or mitigating these consequences may differ depending upon the jurisdiction of conviction or the location of the convicted person's residence. In some cases, federal law incorporates state law relief mechanisms. In others, people convicted of state offenses have no recourse. People convicted under federal law generally cannot take advantage of state relief mechanisms, and thus may have no remedy short of a presidential pardon.

Margaret Colgate Love, Director, Commission on Effective Criminal Sanctions

ANNOUNCEMENTS

ABA Commission Approves Recommendation to Limit Access to Criminal History Information

The Commission has proposed new ABA policy on access to criminal history information. Working with other ABA sections and representatives of the professional background screening industry, the Commission has sought to develop a compromise between the values of open access and individual privacy that underlie criminal records policy, to better advance the important public safety goals of successful offender reentry and reintegration. It recommends that records of closed criminal cases that did not result in a conviction should be automatically sealed from general public access, as should misdemeanor and most felony conviction records after the passage of a specified period of law-abiding conduct. The Commission's recommendation also provides that sealed records may be reopened upon a showing of good cause, and that a sealing order may be revoked upon a subsequent conviction. Credit reporting agencies and others should be prohibited from disclosing a sealed record, and appropriate remedies should be provided for any unauthorized disclosure. In addition, evidence of an individual's conviction should be inadmissible in any negligent hiring case where access to a criminal record has been limited. The Commission's proposed new policy, which has been endorsed by the Criminal Justice Section, will be considered by the ABA House in August. A complete copy can be found under the Policy Recommendations and Reports section to the right.

PLEASE NOTE: The recommendation was withdrawn from the ABA House of Delegates prior to the August 2007 meeting, and may be re-introduced at a later date.

National Spring Conference on Overcoming Legal Barriers to Reentry

On April 30-May 1 the Commission held a national conference on The Legal Barriers to Reentry. This conference brought together policy-makers, government officials, business leaders, and community advocacy groups from across the country to explore ways in which they can together encourage successful offender reentry within their respective jurisdictions. The conference was held at Chicago Kent College of Law. Panels on the afternoon of April 30 addressed employment issues from the point of view of people with a criminal record, and from the point of view of employers. Plenary sessions on the morning of May 1 covered the legal and policy issues raised by criminal backgrounding practices, and the challenges for politicians wishing to implement a reentry initiative. Breakout sessions followed in the afternoon. Notes from this conference are posted to the right under Commission Materials.

Commission Undertakes Compilation of Federal Collateral Consequences of Conviction

In collaboration with District of Columbia Public Defender Service, the Commission will produce an interactive inventory and analysis of the collateral consequences of conviction in federal statutes and regulations. We expect that this will be an invaluable tool for criminal law practitioners and judges in all 50 states, not only as an advocacy resource in particular criminal cases, but also as a model for the inventories contemplated by our ABA Standards on Collateral Sanctions and the new Uniform Law on Collateral Consequences. In addition, the National Institute of Justice has recently solicited proposals to collect collateral consequences for all fifty states, and it is likely that our federal study could serve as a model for state studies ultimately commissioned by NIJ. We expect the compilation to be complete and available on line by the end of December.

This project would fill a gap in existing criminal justice resources affecting almost every criminal offender, since federal collateral consequences apply to people convicted under the laws of all 50 states, as well as to federal offenders. Federal collateral consequences affect such areas as federal benefits; federal contracts and employment; immigration and citizenship; military service; employment in such areas as transportation, education, health care, elder and child care, national security, and banking; labor organizations; firearms regulation; and sex offender registration While an inventory of federal collateral consequences was published in 2000 by the Office of the Pardon Attorney in the Justice Department, it is by now quite out of date, containing none of the post-9/11 laws and regulations dealing with treatment of criminal records. See also Love, Relief from the Collateral Consequences of a Criminal Conviction, A State-by-State Resource Guide, http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486.

Once the study is complete, we will convene a group of criminal justice practitioners, including judges, prosecutors, and defenders, as well as researchers and policy advocates, to discuss the uses to which the study might be put, and possible improvements that might be made to it. We also will establish a mechanism whereby the ABA Criminal Justice Section can provide assistance on an on-going basis to jurisdictions as they develop their own inventories of collateral consequences.

More About Us

The ABA has received a two-year grant to continue the work begun by the Justice Kennedy Commission. Its new Commission on Effective Criminal Sanctions, co-chaired by former Illinois Governor James R. Thompson and Professor Stephen Saltzburg, will seek to develop a broad consensus among prosecutors, defenders and judges, about what can and should be done to reduce reliance on incarceration and to reduce recidivism. To begin with, the Commission will focus on the following areas:

* Alternative sentencing strategies that offer minor offenders a chance to avoid prison and a conviction record;

* Innovative community-based interventions for drug-related crimes that work to reduce recidivism;

* Laws and policies aimed at neutralizing the effect of a conviction through executive and judicial relief mechanisms, and at encouraging employment of people with criminal records.