SB613: Bill Text

LRB-3330/1

PJH:cjs:rs

2009 - 2010 LEGISLATURE

2009 Senate BILL 613

March 11, 2010 - Introduced by Senators Taylor and Risser, cosponsored by Representatives Parisi, Roys, Pasch, Pope-Roberts, Berceau and Fields. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB613,1,3 An Act to create 976.045 of the statutes; relating to: creating a Uniform Collateral Consequences of Conviction Act and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill addresses the issue of collateral consequences to a conviction or finding of delinquency. The bill defines a collateral consequence as a disqualification or a penalty, disability, or disadvantage imposed by operation of law that a person suffers as a result of being convicted of, or found delinquent for, an offenses. A collateral consequence does not include imprisonment, probation, imposition of fine, assessment, or forfeiture, or costs of prosecution.

The bill requires the legislative reference bureau and the legislative council staff, under the direction of the joint review committee on criminal penalties, to identify and create a list of collateral consequences that accrue under state law and administrative rules. Under the bill, a person who is charged with or indicted for an offense must receive information about collateral consequences when he or she is charged or indicted.

If a person is convicted or adjudicated delinquent, the bill requires the sentencing court to inform the person that collateral consequences may apply as a result of the conviction or adjudication and that there may be ways to obtain relief from the collateral consequences and to let the person know when he or she may vote and where he or she may find assistance for relief from collateral consequences from a government or nonprofit agency. Under the bill, if a court fails to provide this information to a person, or if the person does not receive information about collateral consequences when he or she is charged or indicted, that is not grounds to invalidate a plea or a conviction or adjudication of delinquency or grounds for money damages or a claim for relief from any collateral consequence.

Under the bill, a conviction or adjudication of delinquency in another state has the same effect as a conviction or adjudication of delinquency in this state for an offense that has the same elements. A pardon or vacation of a conviction or adjudication of delinquency that occurs in another state has the same effect as a pardon or vacation of a conviction or adjudication of delinquency in this state.

Under the bill, a person who has been convicted of, or adjudicated delinquent for, an offense may petition the sentencing court, at the time of sentencing, or the court for the county in which he or she lives, after sentencing, for an order of limited relief from one or more collateral consequences that relate to the person's employment, education, housing, public benefits, or occupational licensing. If the court hearing the petition determines that granting the petition of relief would materially assist the person in obtaining employment, education, housing, public benefits, or occupational licensing and not put the public at unreasonable risk, the court may order that certain collateral consequences not apply to the person. The court may not relieve a person of his or her duty to register as a sex offender or, if the person is eligible to apply for an occupational driver's license, reinstate driving privileges.

Under the bill, any person may petition the court for the county in which he or she lives for a certificate of restoration of rights relieving collateral consequences after three years have passed since the person's most recent conviction or adjudication of delinquency or three years have passed since the person was released from confinement, whichever occurs later. The bill requires the court to consider several factors, including the person's criminal record and public safety, and allows the court to grant a complete or partial restoration of rights relieving collateral consequences. In addition, the bill requires a court to issue a certificate of restoration of full rights if a person has been pardoned by a governor.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB613, s. 1 Section 1. 976.045 of the statutes is created to read:

SB613,2,4 976.045 Uniform collateral consequences of conviction act. (1) Citation. This section may be cited as the "Uniform Collateral Consequences of Conviction Act."

SB613,2,5 (2) Definitions. In this section:

SB613,3,1 (a) "Collateral consequence" means a collateral sanction or a disqualification.

SB613,3,7 (b) "Collateral sanction" means a penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual's conviction or adjudication of delinquency for an offense that applies by operation of law whether or not it is included in the judgment or sentence. The term does not include imprisonment, probation, parole, extended supervision, forfeiture, restitution, fine, assessment, or costs of prosecution.

SB613,3,12 (c) "Decision-maker" means the state acting directly or through its departments, agencies, officers, or instrumentalities, including political subdivisions, educational institutions, boards, or commissions, or their employees, and government contractors, including subcontractors, made subject to this section by contract, by law other than this section, or by ordinance.

SB613,3,17 (d) "Disqualification" means a penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or a court in a civil proceeding is authorized, but not required, to impose on an individual on grounds relating to the individual's conviction or adjudication of delinquency for an offense.

SB613,3,19 (e) "Offense" means a felony or a misdemeanor under the law of this state, another state, or the United States.

SB613,3,22 (f) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

SB613,3,24 (3) Limitation on scope. (a) This section does not provide a basis for any of the following:

SB613,3,25 1. Invalidating a plea, conviction, adjudication of delinquency, or sentence.

SB613,4,1 2. A cause of action for money damages.

SB613,4,3 3. A claim for relief from, or defense to, the application of a collateral consequence based on a failure to comply with subs. (4), (5), or (6).

SB613,4,4 (b) This section does not affect any of the following:

SB613,4,5 1. The duty an individual's attorney owes to the individual.

SB613,4,6 2. A claim or right of a victim of an offense.

SB613,4,8 3. A right or remedy under law other than this section available to an individual convicted of or adjudicated delinquent for an offense.

SB613,4,12 (4) Identification, collection, and publication of laws regarding collateral consequences. (a) The legislative reference bureau and legislative council staff, under the direction of the joint review committee on criminal penalties, shall do all of the following:

SB613,4,16 1. Identify or cause to be identified any provision in this state's constitution, statutes, and administrative rules that imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence.

SB613,4,19 2. Within 120 after the effective date of this subdivision .... [LRB inserts date], collect or cause to be collected citations to, and the text or short descriptions of, the provisions identified under subd. 1.

SB613,4,21 3. Update or cause to be updated the collection by December 1 of each even-numbered year.

SB613,5,2 (b) In complying with par. (a) 1. and 2., the legislative reference bureau and legislative council staff 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 Improvements Act of 2007, P.L. 110-177.

SB613,5,5 (c) The legislative reference bureau and legislative council staff shall include or cause to be included the following statements in a prominent manner at the beginning of the collection described in par. (a):

SB613,5,7 1. This collection has not been enacted into law and does not have the force of law.

SB613,5,10 2. An error or omission in this collection is not a reason for invalidating a plea, conviction, adjudication of delinquency, or sentence or for not imposing a collateral sanction or disqualification.

SB613,5,13 3. The laws of the United States, other jurisdictions, and units of local governments that impose additional collateral sanctions and disqualifications are not listed in this collection.

SB613,5,16 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 collection was prepared or last updated.

SB613,5,20 (d) The joint review committee on criminal penalties shall publish or cause to be published the collection created and updated as required under par. (a). The collection must be available to the public on the Internet without charge within 7 days after it is created or updated.

SB613,5,24 (5) Notice of collateral consequences in pretrial proceeding. At the time an individual is charged with or indicted for an offense, the prosecutor shall attach to the complaint, or the court shall attach to the indictment, information substantially similar to the following:

SB613,5,25 NOTICE OF ADDITIONAL LEGAL CONSEQUENCES

SB613,6,3 If you plead guilty or are convicted of, or adjudicated delinquent for, an offense you may suffer additional legal consequences beyond jail or prison, probation, periods of extended supervision, and fines. These consequences may include:

SB613,6,4 Being unable to get or keep some licenses, permits, or jobs.

SB613,6,5 Being unable to get or keep benefits such as public housing or education.

SB613,6,7 Receiving a harsher sentence if you are convicted of, or adjudicated delinquent for, another offense in the future.

SB613,6,8 Having the government take your property.

SB613,6,9 Being unable to vote or possess a firearm.

SB613,6,12 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.

SB613,6,13 The law may provide ways to obtain some relief from these consequences.

SB613,6,16 Further information about the consequences of conviction or an adjudication of delinquency is available on the Internet at [insert Internet web address of the collection of laws published under sub. (4) (d)].

SB613,6,19 (6) Notice of collateral consequences at sentencing and upon release. (a) The sentencing court shall provide the following information to an individual who is convicted of, or adjudicated delinquent for, an offense when he or she is sentenced:

SB613,6,21 1. That collateral consequences may apply because of the conviction or adjudication.

SB613,6,22 2. That there may be ways to obtain relief from collateral consequences;

SB613,6,24 3. The Internet Web address of the collection of laws published under sub. (4) (d).

SB613,7,3 4. Contact information for government or nonprofit agencies, groups, or organizations, if any, offering assistance to individuals seeking relief from collateral consequences.

SB613,7,4 5. When the individual may vote under this state's law.

SB613,7,8 (b) If an individual is sentenced to a term of confinement in a jail or a prison, not more than 30 days prior to the individual's release from jail or prison, the department of corrections shall provide to the individual the information described in par. (a).

SB613,7,11 (7) Authorization required for collateral sanction; ambiguity. (a) A collateral sanction may be imposed only by statute or ordinance, or by a rule authorized by law and adopted pursuant to this section.

SB613,7,14 (b) A law creating a collateral consequence that is ambiguous as to whether it imposes a collateral sanction or authorizes a disqualification must be construed as authorizing a disqualification.

SB613,7,19 (8) Decision to disqualify. In deciding whether to impose a disqualification on an individual, a decision-maker shall undertake an individual assessment to determine whether the benefit or opportunity at issue should be granted. In making that decision, a decision-maker may consider, if substantially related to the benefit or opportunity at issue:

SB613,7,20 (a) The particular facts and circumstances involved in the offense.

SB613,7,23 (b) The essential elements of the offense, except that the conviction or adjudication of delinquency itself may not be considered except as having established the elements of the offense.

SB613,8,3 (c) Other relevant information, including the effect of granting the benefit or opportunity on 3rd parties and whether the individual has been granted relief such as an order of limited relief or a certificate of restoration of rights.

SB613,8,12 (9) Effect of conviction by another state or the united states; vacated or pardoned conviction. (a) For purposes of authorizing or imposing collateral consequences in this state, a conviction for 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 below a misdemeanor in the jurisdiction of conviction may not be deemed a conviction of a crime in this state.

SB613,8,20 (b) For purposes of authorizing or imposing collateral consequences in this state, a juvenile adjudication in another state or the United States may not be deemed a felony, misdemeanor, or offense below a misdemeanor in this state, but may be deemed a juvenile adjudication for the juvenile violation in this state with the same elements in the underlying offense. If there is no juvenile violation in this state with the same underlying elements, the juvenile adjudication is deemed an adjudication of the most serious juvenile violation in this state which is established by the underlying elements of the juvenile adjudication.

SB613,8,24 (c) A conviction or adjudication of delinquency 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.

SB613,9,3 (d) A pardon issued by another state or the United States has the same effect for purposes of authorizing, imposing, and relieving collateral consequences in this state as it has in the issuing jurisdiction.

SB613,9,18 (e) A conviction or adjudication of delinquency that has been expunged, sealed, annulled, set aside, or otherwise vacated 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 were restored pursuant to statute, has the same effect for purposes of authorizing, imposing, and relieving collateral consequences in this state as it has in the jurisdiction of conviction or adjudication, except that vacation 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 sub. (12), or for which relief was expressly withheld by the court order or by the law of the jurisdiction that vacated the conviction or adjudication. An individual convicted or adjudicated delinquent in another jurisdiction may seek relief under sub. (10) or (11) from any collateral consequence for which relief was not granted in the issuing jurisdiction, other than those listed in sub. (12), and the court shall consider that the conviction or adjudication was vacated or civil rights restored in deciding whether to issue an order of limited relief or certificate of restoration of rights.

SB613,9,25 (f) A charge or prosecution in any jurisdiction that has been finally terminated without a judgment of conviction or adjudication of delinquency and imposition of sentence based on participation in a deferred prosecution or diversion program may not serve as the basis for authorizing or imposing a collateral consequence in this state. This paragraph does not affect the validity of any restrictions or conditions imposed by law as part of participation in the deferred prosecution or diversion program, either before or after the termination of the charge or prosecution.

SB613,10,4 (10) Order of limited relief. (a) An individual convicted of or adjudicated delinquent for an offense may petition for an order of limited relief from one or more collateral sanctions related to employment, education, housing, public benefits, or occupational licensing. The petition may be presented to any of the following:

SB613,10,5 1. The sentencing court at or before sentencing.

SB613,10,7 2. The court for the county where the individual resides at any time after sentencing.

SB613,10,13 (b) Except as otherwise provided in sub. (12) the court may issue an order of limited relief relieving one or more of the collateral sanctions described in par. (a) if, after reviewing the record, including the individual's criminal history, any filing by a prosecutor or victim under sub. (16), and any other relevant evidence, it finds the individual has established by a preponderance of the evidence that all of the following are true:

SB613,10,16 1. Granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits, or occupational licensing.