by RICH CASSIDY on MAY 19, 2011
My last post covered the good news on collateral consequences law reform: support for the idea from our nation’s chief law enforcement officer, United States Attorney General Eric Holder. I promised the bad news this time and hope for the future in my third post of this series.
So it’s time for the bitter pill, the bad news: As state legislative sessions adjourn, the Uniform Collateral Consequences Act has not become law in any jurisdiction and won’t this year.
This legislative season was really the first effort to pursue enactment of the UCCCA (although the bill was proposed last year in Wisconsin), after the Act was amended to take into account the U.S. Supreme Court’s decision in Padilla v. Kentucky, 509 U.S. ___,130 S. Ct. 1473 (2010).
This year the UCCCA was introduced into the legislatures of six states, in Colorado as S. 41, in Minnesota as H. 489, in Nevada as S. 87, in New Mexico as H. 311, in Vermont as S.38, and in West Virginia as H. 2010.
In two of those states, Nevada and West Virginia, concern that it would cost some money to implement the Act quickly brought consideration to an end. In those states, among others, the idea that by helping reintegrate persons with convictions into society the long term impact of the UCCCA will be to save money was not enough to overcome today’s fiscal concerns. For next year, proponents in such states should note that Colorado’s proposal included a filing fee, with provision for an in forma pauperis waiver, that would fund additional judge time to hear applications for relief.
I’m less clear on exactly what that status of the Act is in Minnesota. My impression is that the first year of the biennial session has ended without real consideration of the UCCCA there, but that it could see action next year.
In Vermont, as in Colorado, the Act was given a real look. In both states, seemingly reflexive opposition from each state’s Attorney General and from some local prosecutors proved to be serious roadblocks. Here in Vermont, Chittenden County State’s Attorney T.J. Donovan helped the Act get a unanimous recommendation from the Senate Judiciary Committee. See “The Uniform Collateral Consequences of Conviction Act takes a Step Towards Adoption in Vermont, March 13, 2011. But on the floor, opposition from Senator Vincent Illuzzi — who is also the part-prosecutor in Essex County — threw sand in the gears of the legislative process. As described in my March 27, 2011 post, he testified against the bill before the Judiciary Committee. See Update on the Uniform Collateral Consequences of Conviction Act. Although his testimony did not shake the Committee’s support for the bill, he managed to bring consideration of it to a halt on the Senate floor by proposing 41 amendments to the legislation. The Senator flatly refused to discuss his concerns with me. The Vermont Legislature adjourned for the year on May 6, 2011 without floor action on the UCCCA. But the Senate Judiciary Committee remains interested in pursuing the legislation next year.
In Colorado, the UCCCA passed the State Senate, and was taken up by the House Judiciary Committee. The Committee took testimony on the bill on May 4 and then took a Committee vote on the Act. It failed 5-4 on a party line vote.
The UCCCA came closest to adoption in New Mexico; in fact it came tantalizingly close. It was adopted overwhelmingly by both the New Mexico House and Senate, only to be vetoed on April 7, 2011 by New Mexico’s new Governor, Susan Martinez. Her brief veto message gives a simple reason for the decision. She wrote, “The attorney for the defendant has a responsibility to provide counsel to his or her client and explain all possible collateral sanctions or penalties.” You can read the full text of her veto message here: Governor’s Veto Message
Regular readers of OnLawyering.com understand that the problem is far larger than that. At present, lawyers for defendants in criminal cases don’t even have the means to identify the hundreds of forum-state statutes and regulations that impose collateral consequences.
The lesson of our first year of enactment effort on the UCCCA simple: the Act addresses a problem that is not well understood. The Act’s effort to mitigate that problem is complex. It will take time and effort to educate decision makers about it. In particular, we need to bring representatives of the law enforcement community on board.
Next time: reason for optimism.