General Assembly

  

Raised Bill No. 1063

January Session, 2013

  

LCO No. 4217

 

*04217_______JUD*

Referred to Committee on JUDICIARY

 

Introduced by:

  

(JUD)

  

AN ACT CONCERNING THE UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2013) Sections 1 to 17, inclusive, of this act may be cited as the Collateral Consequences of Conviction Act.

Sec. 2. (NEW) (Effective October 1, 2013) As used in sections 1 to 17, inclusive, of this act:

(1) "Collateral consequence" means a collateral sanction or a disqualification;

(2) "Collateral sanction" means a penalty, disability or disadvantage, however denominated, imposed on an individual as a result of the individual's conviction of an offense which applies by operation of law whether or not the penalty, disability or disadvantage is included in the judgment or sentence. "Collateral sanction" does not include incarceration, probation, parole, supervised release, forfeiture under title 54 of the general statutes, criminal fine, assessment or costs of prosecution;

(3) "Conviction" means a judgment entered by a court upon a plea of guilty, a plea of nolo contendere or a finding of guilty by a jury or the court notwithstanding any pending appeal or habeas corpus proceeding arising from such judgment, and includes conviction of a delinquent act, as defined in section 46b-120 of the general statutes;

(4) "Decision-maker" means the state acting through a department, agency, officer or instrumentality, including a political subdivision, educational institution, board or commission, or its employees;

(5) "Disqualification" means a penalty, disability or disadvantage, however denominated, that an administrative agency, governmental official or court in a civil proceeding is authorized, but not required, to impose on an individual on grounds relating to the individual's conviction of an offense;

(6) "Offense" means a felony, as defined in section 53a-25 of the general statutes, a misdemeanor, as defined in section 53a-26 of the general statutes, a violation, as defined in section 53a-27 of the general statutes, any violation of the sections of the general statutes deemed to be infractions, or a delinquent act, as defined in section 46b-120 of the general statutes, or any offense the essential elements of which are substantially the same as any such felony, misdemeanor, violation, infraction or delinquent act under the law of another state or the United States;

(7) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity; and

(8) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

Sec. 3. (NEW) (Effective October 1, 2013) (a) Sections 1 to 17, inclusive, of this act do not provide a basis for:

(1) Invalidating a plea, conviction or sentence;

(2) A cause of action for money damages; or

(3) A claim for relief from or defense to the application of a collateral consequence based on a failure to comply with any provision of section 4, 5 or 6 of this act.

(b) Sections 1 to 17, inclusive, of this act do not affect:

(1) The duty an individual's attorney owes to the individual;

(2) A claim or right of a victim of an offense; or

(3) A right or remedy under law other than sections 1 to 17, inclusive, of this act, that are available to an individual who is convicted of an offense.

Sec. 4. (NEW) (Effective October 1, 2013) (a) The Judicial Branch:

(1) Shall identify or cause to be identified any provision in the Constitution of the state of Connecticut, the general statutes or the regulations of Connecticut state agencies which imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence;

(2) Not later than July 1, 2014, shall prepare or cause to be prepared a collection of citations to, and the text or short descriptions of, the provisions identified in subdivision (1) of this subsection;

(3) Not later than July 1, 2015, and annually thereafter, shall update or cause to be updated the collection; and

(4) In complying with subparagraphs (1) and (2) of this subsection, may rely on the study of this state's collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in Section 510 of the Court Security Improvement Act of 2007, P.L. 110-177.

(b) The Judicial Branch shall include or cause to be included the following statements in a prominent manner at the beginning of the collection required by subsection (a) of this section:

(1) This collection has not been enacted into law and does not have the force of law.

(2) An error or omission in this collection or in any reference work cited in this collection is not a reason for invalidating a plea, conviction or sentence or for not imposing a collateral sanction or authorizing a disqualification.

(3) The laws of other jurisdictions and municipal ordinances, regulations and bylaws which impose additional collateral sanctions and authorize additional disqualifications are not included in this collection.

(4) This collection does not include any law or other provision regarding the imposition of or relief from a collateral sanction or a disqualification enacted or adopted after the date the collection was prepared or last updated (.... insert date).

(c) The Judicial Branch shall publish or cause to be published the collection prepared and updated as required under subsection (a) of this section. If available, the Judicial Branch shall publish or cause to be published, as part of the collection, the title and Internet web site address of the most recent collection of:

(1) The collateral consequences imposed by federal law; and

(2) Any provision of federal law that may afford relief from a collateral consequence.

(d) The collection prepared and updated pursuant to this section shall be made available to the public on the Internet web site of the Judicial Branch without charge not later than July 1, 2014, and annually thereafter.

Sec. 5. (NEW) (Effective October 1, 2013) (a) Whenever an individual receives formal notice that the individual is charged with an offense, the Judicial Branch shall cause notice substantially similar to the following to be communicated to the individual:

NOTICE OF ADDITIONAL LEGAL CONSEQUENCES

If you plead guilty or are convicted of an offense you may suffer additional legal consequences beyond jail or prison, fines, probation, parole, special parole or other supervision. These consequences may include:

If you are not a United States citizen, a guilty plea or conviction may also result in your deportation, removal, exclusion from admission to the United States or denial of citizenship.

The law may provide ways to obtain some relief from these consequences.

Further information about the consequences of conviction is available on the Internet at (…. insert Internet web site address of the collection of laws published under subsections (c) and (d) of section 4 of this act).

(b) Before the court accepts a plea of guilty or nolo contendre from an individual with respect to an offense, the court shall confirm that the individual received and understands the notice required by subsection (a) of this section and had an opportunity to discuss the notice with his or her attorney.

Sec. 6. (NEW) (Effective October 1, 2013) (a) An individual convicted of an offense shall be given notice as provided in subsections (b) and (c) of this section:

(1) That collateral consequences may apply because of the conviction;

(2) Of the Internet web site address of the collection of laws published under subsection (c) of section 4 of this act;

(3) That there may be ways to obtain relief from collateral consequences;

(4) Of contact information for government or nonprofit agencies, groups or organizations, if any, offering assistance to individuals seeking relief from collateral consequences; and

(5) Of when an individual convicted of an offense may vote under Connecticut law.

(b) The court shall provide the notice described in subsection (a) of this section as a part of sentencing.

(c) If an individual is sentenced to a period of incarceration, the officer or agency releasing the individual shall provide the notice described in subsection (a) of this section not more than thirty, and, if practicable, at least ten days before release from incarceration.

Sec. 7. (NEW) (Effective October 1, 2013) (a) A collateral sanction may be imposed only by statute or the regulations of Connecticut state agencies.

(b) A law creating a collateral consequence that is ambiguous as to whether it imposes a collateral sanction or authorizes a disqualification shall be construed as authorizing a disqualification.

Sec. 8. (NEW) (Effective October 1, 2013) In deciding whether to impose a disqualification, a decision-maker shall undertake an individualized assessment to determine whether the benefit or opportunity at issue should be denied the individual. In making that decision, the decision-maker may consider, if substantially related to the benefit or opportunity at issue, the particular facts and circumstances involved in the offense and the essential elements of the offense. A conviction itself may not be considered except as having established the elements of the offense. The decision-maker shall also consider other relevant information, including the effect on third parties of granting the benefit or opportunity and whether the individual has been granted relief such as a provisional pardon.

Sec. 9. (NEW) (Effective October 1, 2013) (a) For purposes of authorizing or imposing a collateral consequence in this state, a conviction of an offense in a court of another state or the United States is deemed a conviction of the offense in this state with the same elements. If there is no offense in this state with the same elements, the conviction is deemed a conviction of the most serious offense in this state which is established by the elements of the offense. A misdemeanor in the jurisdiction of conviction may not be deemed a felony in this state, and an offense lesser than a misdemeanor in the jurisdiction of conviction may not be deemed a conviction of a felony or misdemeanor in this state.

(b) For purposes of authorizing or imposing a collateral consequence in this state, a juvenile adjudication in another state or the United States may not be deemed a conviction of a felony, misdemeanor or offense lesser than a misdemeanor in this state, but may be deemed a conviction of a delinquent act in this state with the same elements. If there is no delinquent act in this state with the same elements, the juvenile adjudication is deemed an adjudication of the most serious delinquent act in this state which is established by the elements of the offense.

(c) A conviction that is reversed, overturned or otherwise vacated by a court of competent jurisdiction of this state, another state or the United States on grounds other than rehabilitation or good behavior may not serve as the basis for authorizing or imposing a collateral consequence in this state.

(d) A pardon issued by another state or the United States has the same effect for purposes of authorizing, imposing and relieving a collateral consequence in this state as it has in the issuing jurisdiction.

(e) A conviction that has been relieved by expungement, sealing, annulment, set-aside or vacating by a court of competent jurisdiction of another state or the United States on grounds of rehabilitation or good behavior, or for which civil rights are restored pursuant to statute, has the same effect for purposes of authorizing or imposing collateral consequences in this state as it has in the jurisdiction of conviction, except that such relief or restoration of civil rights does not relieve collateral consequences applicable under the law of this state for which relief could not be granted under section 12 of this act or for which relief was expressly withheld by the court order or by the law of the jurisdiction that relieved the conviction. An individual convicted in another jurisdiction may seek relief under section 10 or 11 of this act from any collateral consequence for which relief was not granted in the issuing jurisdiction, other than those listed in section 12 of this act, and the Board of Pardons and Paroles shall consider that the conviction was relieved or civil rights restored in deciding whether to issue an order of limited relief or certificate of restoration of rights.

(f) A charge or prosecution in any jurisdiction which has been finally terminated without a conviction and imposition of sentence based on participation in a deferred adjudication or diversion program may not serve as the basis for authorizing or imposing a collateral consequence in this state. The provisions of this subsection do not affect the validity of any restriction or condition imposed by law as part of participation in the deferred adjudication or diversion program, before or after the termination of the charge or prosecution.

Sec. 10. (NEW) (Effective October 1, 2013) (a) An individual convicted of an offense may petition for an order of limited relief from one or more collateral sanctions related to employment, education, housing, public benefits, or the granting of a license, as defined in section 54-130e of the general statutes. The petition may be presented to:

(1) The sentencing court at or before sentencing; or

(2) The Board of Pardons and Paroles at any time after sentencing.

(b) Except as otherwise provided in section 12 of this act, the court or the Board of Pardons and Paroles may issue an order of limited relief relieving one or more of the collateral sanctions described in subsection (a) of this section if, after reviewing the petition, the individual's criminal history, any filing by a victim under section 15 of this act or a prosecutor, and any other relevant evidence, it finds the individual has established by a preponderance of the evidence that:

(1) Granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or licensing;

(2) The individual has substantial need for the relief requested in order to live a law abiding life; and

(3) Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

(c) The order of limited relief shall specify:

(1) The collateral sanction from which relief is granted; and

(2) Any restriction imposed pursuant to subsection (a) of section 13 of this act.

(d) An order of limited relief relieves a collateral sanction to the extent provided in the order.

(e) If a collateral sanction has been relieved pursuant to this section, a decision-maker may consider the conduct underlying a conviction as provided in section 8 of this act.

Sec. 11. (NEW) (Effective October 1, 2013) (a) An individual convicted of an offense may petition the Board of Pardons and Paroles for a certificate of restoration of rights relieving collateral sanctions not sooner than five years after the individual's most recent conviction of a felony or misdemeanor in any jurisdiction, or not sooner than five years after the individual's release from confinement pursuant to a criminal sentence in any jurisdiction, whichever is later.

(b) Except as otherwise provided in section 12 of this act, the Board of Pardons and Paroles may issue a certificate of restoration of rights if, after reviewing the petition, the individual's criminal history, any filing by a victim under section 15 of this act or a prosecutor, and any other relevant evidence, it finds the individual has established by a preponderance of the evidence that:

(1) The individual is engaged in, or is seeking to engage in, a lawful occupation or activity, including employment, training, education or rehabilitative programs, or the individual otherwise has a lawful source of support;

(2) The individual is not in violation of the terms of any criminal sentence, or that any failure to comply is justified, excused, involuntary or insubstantial;

(3) A criminal charge is not pending against the individual; and

(4) Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

(c) A certificate of restoration of rights shall specify any restriction imposed and collateral sanction from which relief has not been granted under subsection (a) of section 13 of this act.

(d) A certificate of restoration of rights relieves all collateral sanctions, except those listed in section 12 of this act and any others specifically excluded in the certificate.

(e) If a collateral sanction has been relieved pursuant to this section, a decision-maker may consider the conduct underlying a conviction as provided in section 8 of this act.

Sec. 12. (NEW) (Effective October 1, 2013) An order of limited relief or certificate of restoration of rights may not be issued to relieve the following collateral sanctions:

(1) Requirements imposed by chapter 969 of the general statutes to register as a sexual offender or requirements imposed by the notification act enacted pursuant to 42 USC Section 14071 or 42 USC Section 16901 et seq. or with regulations promulgated thereunder;

(2) A motor vehicle license suspension, revocation, limitation or ineligibility pursuant to title 14 of the general statutes, for which restoration or relief is available pursuant to title 14 of the general statutes; or

(3) Ineligibility for employment pursuant to any provision of the general statutes under which such employment is prohibited.

Sec. 13. (NEW) (Effective October 1, 2013) (a) When a petition is filed under section 10 or 11 of this act, including a petition for enlargement of an existing order of limited relief or certificate of restoration of rights, the Board of Pardons and Paroles shall notify the office that prosecuted the offense giving rise to the collateral consequence from which relief is sought and, if the conviction was not obtained in a court of this state, the office of the Chief State's Attorney. The court may issue an order and the Board of Pardons and Paroles may issue an order or certificate subject to restriction, condition or additional requirement. When issuing, denying, modifying or revoking an order or certificate, the Board of Pardons and Paroles may impose conditions for reapplication.

(b) The Board of Pardons and Paroles may restrict or revoke an order of limited relief or certificate of restoration of rights it issued or an order of limited relief issued by a court in this state if it finds just cause by a preponderance of the evidence. Just cause includes subsequent conviction of a felony in this state or of an offense in another jurisdiction that is deemed a felony in this state under subsection (a) of section 9 of this act. An order of restriction or revocation may be issued:

(1) On motion of the Board of Pardons and Paroles, the office of the prosecutor that obtained the conviction or a government agency designated by that prosecutor;

(2) After notice to the individual and any prosecutor that has appeared in the matter; and

(3) After a hearing under chapter 54 of the general statutes, if requested by the individual or the prosecutor that made the motion or any prosecutor that has appeared in the matter.

(c) The court or Board of Pardons and Paroles shall order any test, report, investigation or disclosure by the individual it reasonably believes necessary to its decision to issue, modify or revoke an order of limited relief or certificate of restoration of rights. If there are material disputed issues of fact or law, the individual and any prosecutor notified under subsection (a) of this section or another prosecutorial agency designated by a prosecutor notified under subsection (a) of this section may submit evidence and be heard on those issues.

(d) The Board of Pardons and Paroles shall maintain a public record of the issuance, modification and revocation of orders of limited relief and certificates of restoration of rights. Criminal history record information, as defined in section 54-142g of the general statutes, shall include issuance, modification and revocation of orders and certificates.

(e) The Board of Pardons and Paroles may adopt regulations, in accordance with chapter 54 of the general statutes, to provide for application, determination, modification and revocation of orders of limited relief and certificates of restoration of rights.

Sec. 14. (NEW) (Effective October 1, 2013) In a judicial or administrative proceeding alleging negligence or other fault, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person's due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued, if the person knew of the order or certificate at the time of the alleged negligence or other fault.

Sec. 15. (NEW) (Effective October 1, 2013) A victim of an offense may participate in a proceeding for issuance, modification or revocation of an order of limited relief or a certificate of restoration of rights.

Sec. 16. (NEW) (Effective October 1, 2013) In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Sec. 17. (NEW) (Effective October 1, 2013) (a) Sections 1 to 17, inclusive, of this act apply to collateral consequences whenever enacted or imposed, unless the law creating the collateral consequence expressly states that sections 1 to 17, inclusive, of this act does not apply.

(b) Sections 1 to 17, inclusive, of this act do not invalidate the imposition of a collateral sanction on an individual before October 1, 2013, but a collateral sanction validly imposed before October 1, 2013, may be the subject of relief under sections 1 to 17, inclusive, of this act.

Sec. 18. Subdivision (7) of subsection (b) of section 54-203 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(7) To provide each person who applies for compensation pursuant to section 54-204, [within] not later than ten days [of] after the date of receipt of such application, with a written list of rights of victims of crime involving personal injury and the programs available in this state to assist such victims. The Office of Victim Services, the state or any agent, employee or officer thereof shall not be liable for the failure to supply such list or any alleged inadequacies of such list. Such list shall include, but not be limited to:

(A) Subject to the provisions of sections 18-81e and 51-286e, the victim shall have the right to be informed concerning the status of his or her case and to be informed of the release from custody of the defendant;

(B) Subject to the provisions of section 54-91c, the victim shall have the right to present a statement of his or her losses, injuries and wishes to the prosecutor and the court prior to the acceptance by the court of a plea of guilty or nolo contendere made pursuant to a plea agreement with the state wherein the defendant pleads to a lesser offense than the offense with which the defendant was originally charged;

(C) Subject to the provisions of section 54-91c, prior to the imposition of sentence upon the defendant, the victim shall have the right to submit a statement to the prosecutor as to the extent of any injuries, financial losses and loss of earnings directly resulting from the crime;

(D) Subject to the provisions of section 54-126a, the victim shall have the right to appear before a panel of the Board of Pardons and Paroles and make a statement as to whether the defendant should be released on parole and any terms or conditions to be imposed upon any such release;

(E) Subject to the provisions of section 54-36a, the victim shall have the right to have any property the victim owns which was seized by police in connection with an arrest to be returned;

(F) Subject to the provisions of sections 54-56e and 54-142c, the victim shall have the right to be notified of the application by the defendant for the pretrial program for accelerated rehabilitation and to obtain from the court information as to whether the criminal prosecution in the case has been dismissed;

(G) Subject to the provisions of section 54-85b, the victim cannot be fired, harassed or otherwise retaliated against by an employer for appearing under a subpoena as a witness in any criminal prosecution;

(H) Subject to the provisions of section 54-86g, the parent or legal guardian of a child twelve years of age or younger who is a victim of child abuse or sexual assault may request special procedural considerations to be taken during the testimony of the child;

(I) Subject to the provisions of section 46b-15, the victim of assault by a spouse or former spouse, family or household member has the right to request the arrest of the offender, request a protective order and apply for a restraining order;

(J) Subject to the provisions of sections 52-146k, 54-86e and 54-86f, the victim of sexual assault or domestic violence can expect certain records to remain confidential; [and]

(K) Subject to the provisions of section 53a-32, the victim may receive notification from a probation officer whenever the officer has notified a police officer that the probation officer has probable cause to believe that the offender has violated a condition of such offender's probation; and

(L) Subject to the provisions of sections 1 to 17, inclusive, of this act, the victim may participate in any hearing on the issuance, modification and revocation of orders of limited relief and certificates of restoration of rights.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2013

New section

Sec. 2

October 1, 2013

New section

Sec. 3

October 1, 2013

New section

Sec. 4

October 1, 2013

New section

Sec. 5

October 1, 2013

New section

Sec. 6

October 1, 2013

New section

Sec. 7

October 1, 2013

New section

Sec. 8

October 1, 2013

New section

Sec. 9

October 1, 2013

New section

Sec. 10

October 1, 2013

New section

Sec. 11

October 1, 2013

New section

Sec. 12

October 1, 2013

New section

Sec. 13

October 1, 2013

New section

Sec. 14

October 1, 2013

New section

Sec. 15

October 1, 2013

New section

Sec. 16

October 1, 2013

New section

Sec. 17

October 1, 2013

New section

Sec. 18

October 1, 2013

54-203(b)(7)

Statement of Purpose:

To adopt the Uniform Collateral Consequences of Conviction Act.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]