recent legislation on collateral consequences andre r. imbrogno, member, ohio parole board ohio...
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Recent Legislation on
Collateral Consequences
Andre R. Imbrogno, Member, Ohio Parole Board
Ohio Department of Rehabilitation and Correction
Collateral Consequences
• “Collateral consequences” are restrictions, disabilities, or penalties beyond the direct punishment imposed on individuals at the time of sentencing.
• Generally, the term “collateral consequence” includes both “collateral sanctions,” which apply automatically upon conviction, and “discretionary disqualifications.”
Why Do Collateral Consequences Matter?
• Over 1.9 million Ohio residents (out of 11.5 million, or 17%) have a misdemeanor or felony conviction.
• For many Ohioans, their criminal histories limit their employment opportunities.
• The inability to obtain employment, in turn, frustrates successful reentry.
• There are over 800 places in the Ohio Revised Code and the Ohio Administrative Code that lists sanctions related to employment and other barriers for persons who have misdemeanor or felony convictions in their backgrounds.
A National Problem
• In 1974, 1.8 million (1.3% of the population) had been imprisoned at some point in their lives. By 2001, that number had risen to 5.6 million (2.7% of the adult population). If that rate remains unchanged, 6.6% of Americans born in 2001 will serve prison time in their lives. An even larger portion of the population has been convicted of a criminal offense without going to prison. According to a 2003 DOJ report, nearly 25% of the population (71 million) had a criminal record.
(source: Uniform Law Commission Collateral Consequences of Conviction Act Summary)
Facilitating Successful Reentry
• Ohio’s offender recidivism rate is currently at an 11-year low, with only 34% of inmates returning to prison after release.
• Ohio continues to explore opportunities to further decrease the number of offenders who return to prison.
• Approximately 400,000 individuals have come through the prison system since the mid-1980s.
Facilitating Successful Reentry
• The important role that gainful employment plays in successful reentry is recognized in Parole Board release considerations. Per administrative rule (5120:1-1-07), in determining suitability for release, the Board is to consider, among other things:
• The “inmate’s employment history and . . .
occupational skills” as well as the “inmate’s
vocational, educational, and other training.”
• “The adequacy of the inmate’s plan or prospects
on release.”
Recent Legislation
Two recently enacted pieces of legislation address collateral consequences in Ohio:
HB 86 (Effective 9/30/11)
SB 337 (Effective 9/28/12)
• House Bill 86, enacted in 2011, is a comprehensive act that reformed virtually every aspect of Ohio’s criminal justice system, including sentencing, community supervision, and reentry.
State v. Foster—Consecutive SentencesCrack/Powder Cocaine Penalty Equalization Sentencing Guidance on Drug Offenses Theft Thresholds Non-Support PenaltiesIntervention in LieuProbation Improvement and Incentive GrantsAdmissions to Residential Community SanctionsConcurrent SupervisionProbation and Training StandardsJustice Reinvestment Risk Reduction SentencingFelony 4 and Felony 5 Sentencing/Felony 1 and Felony 3 Sentencing Ranges Traditional Judicial Release (R.C. 2929.20)New 80% Judicial Release (R.C. 2967.19)Earned CreditCollateral Consequences: Certificate of Achievement and Employability
• In House Bill 86, the Ohio legislature took a first, modest step toward addressing collateral consequences through the Certificate of Achievement and Employability.
OverviewEligible offenders may apply to the DRC for a
certificate that relieves the applicant from one or more “mandatory civil impacts”— any section of the Revised Code or Administrative Code that creates a penalty, disability, or disadvantage that is imposed by a licensing agency or employer and which precludes a person with a criminal record from obtaining licensure or employment.
Individual Consideration/Rebuttable Presumption
If a person who has been issued a certificate applies to a licensing agency for a license or certificate and the person has a conviction that otherwise would bar licensure or certification, the licensing agency must give the person individualized consideration.
Certificate creates a rebuttable presumption that the criminal conviction is insufficient evidence that the person is unfit.
However, license/certification may be denied if agency determines the applicant is unfit after individualized consideration.
Rules Applying to Employers
Same rules, above, apply for employers who are seeking a license or certification and who have hired a certificate holder.
Employer Immunity: Negligent Hiring
If an employer hires a certificate holder, if a subsequent action is filed against the employer for negligent hiring based on the employer’s actual or constructive knowledge of the certificate holder’s incompetence or dangerousness, the certificate is an absolute defense to the element of the employer’s actual or constructive knowledge.
Employer Immunity: Negligent Retention
If the certificate holder, after being hired, subsequently demonstrates dangerousness and if the employer nevertheless retains the employee, the employer may be held liable in a civil action that relates to the retention only if it is proven that the employer had actual knowledge of the employee’s dangerousness and willfully retained the employee after the employee demonstrated the employee’s dangerousness.
Eligibility for a Certificate
Applicant is currently incarcerated with an
expected release date that is one year or
less from the date of the application or the
applicant is currently on parole or post-
release control.
The applicant satisfactorily completed
one or more in-prison vocational
programs approved by department rule.
Eligibility for a certificate (continued):
The applicant completed one or more
cognitive or behavioral improvement
programs while incarcerated, while under
supervision, or both.
The applicant has completed community
service hours.
The applicant has shown other evidence
of achievement and rehabilitation.
“Evidence of achievement and rehabilitation”— Examples:
Completing adult basic education
Obtaining a GED
Completing a pre-GED program
Obtaining a high school diploma
Completing anger management
Completing victim awareness
Revocation of Certificate
An issued certificate must be revoked if
the certificate holder is subsequently
convicted of any offense other than a
minor misdemeanor or traffic offense.
Certificate cannot be revoked for violation
of a condition of release unless the
violation is also a criminal offense.
• Effective September 28, 2012. • Enacts a number of proposals developed in
collateral consequences forums debuted in 2011 by Gov. Kasich and co-sponsored by DRC and DYS to formulate consensus-based policy proposals to present to the General Assembly. – Other stakeholders included legislators, judges,
prosecutors, and the Ohio Public Defender.
• Areas Affected by Senate Bill 337– Professional Licensing– Record Sealing– Child Support– Traffic Penalties/Driver’s Licenses– Juvenile Justice
• Certificate of Qualification for Employment (CQE)
Senate Bill 337 creates a new type of court-issued certificate that removes barriers to professional licensing. The CQE lifts the automatic bar of an employment-related collateral consequence and entitles the certificate holder to individualized consideration on the question of fitness.
The CQE builds upon the concept of the Certificate of Achievement and Employability.
• CQEs: EligibilityAn individual is eligible for a CQE regardless of
whether the offender was incarcerated for the crime or instead received community control. Application may be made at any time after one year has expired from release from incarceration and any period of post-release supervision, or one year from final release from all community control sanctions, as appropriate.
• CQEs: Review of Applications
In most cases, applications for CQEs are submitted to the DRC and are reviewed for completeness by DRC’s Adult Parole Authority. If the application is complete, the APA will forward the application to the court of common pleas of the county in which the applicant resides.
• CQEs: Application Information(1)Name, date of birth, and Social Security number.
(2)All aliases and all Social Security numbers associated with the aliases.
(3)Residence address.
(4)Length of time that the applicant has been an Ohio resident.
(5)Name or type of each collateral sanction from which the individual is requesting a CQE.
• CQEs: Application Information (continued):(6) A summary of the applicant’s criminal history with
respect to each offense that is a disqualification from employment or licensing, including the years of each conviction.
(7) A summary of the applicant’s employment history.
(8) Verifiable references.
(9) The name of immediate family members or others who support the applicant’s reentry plan.
• CQEs: Application Information (continued):(10) A summary of the reason that the applicant
believes the CQE should be granted.
(11) Any other information required by DRC rule.
• CQEs: Factors for Court to ConsiderA court of common pleas must consider all of the following
factors in deciding whether or not to grant a CQE:
(1)Will granting the certificate materially assist the offender in finding employment?
(2)Does the offender have a substantial need for the CQE in order to live a law-abiding life?
(3)Will granting the CQE pose an unreasonable safety risk to the general public or any individual?
The burden is on the applicant to establish each of these
criteria in his or her favor by a preponderance of evidence.
• A court may not issue a CQE that grants the individual relief from any of the following:
– Requirements imposed under the SORN Law.
– Certain driver’s license suspensions or revocations, including DUI.
– Restrictions on employment as a prosecutor or law enforcement officer.
• CQE limitations—Collateral Consequences Not Eligible (continued)– Denial, ineligibility, or automatic suspension of a license as
a health care professional under Title 47 if the person was convicted of aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, GSI, aggravated arson, aggravated robbery, aggravated burglary, unlawful distribution of abortion-inducing drug.
– Immediate suspension of a license, certificate, or evidence of registration imposed on a licensed health care professional who is addicted to or illegally distributing a controlled substance.
• CQE limitations—Collateral Consequences Not Eligible (continued)– Denial or ineligibility for employment in a pain
clinic for those convicted of felony drug offenses or felony theft offenses.
– The mandatory suspension of a license as a health care professional for being in default on child support payments.
• CQEs: Court Procedure• Court of common pleas where the applicant resides
hears and determines the application.• Steps the court must take upon receiving an application:
– Notify the prosecutor of the county where the applicant resides that the prosecutor may send comments.
– Notify all other courts in the state in which the offender has been convicted of an offense that the court may send comments on the application.
• CQEs: Court Procedure (continued)– Order any report, investigation, or disclosure by the
individual that the court believes is necessary.– Consider any filings submitted by the victim or victims.– Decide whether to issue the certificate within 60 days
after the court receives the application. (Court may extend beyond 60 days upon the applicant’s request.)
• CQEs: Denial• If a court denies an application for a CQE, the
court must provide written notice of the denial to the offender.
• Following a denial, the court may place conditions on reapplication.
• A person denied a CQE by a court may appeal to the court of appeals. The court’s denial will be reviewed under an abuse of discretion standard.
• CQEs: Immunity
Like the certificate of achievement and employability, the CQE affords employers who rely upon it immunity in negligent hiring actions and qualified immunity in negligent retention lawsuits filed against them on the basis of acts committed by their employee-certificate holders.
• CQEs: Revocation
A CQE is presumptively revoked if the certificate holder, after receiving the certificate, is convicted of any felony offense.
• Senate Bill 337 prohibits the following agencies from denying licenses on the basis of a prior criminal history, unless the offense is a “disqualifying offense” or crime of moral turpitude.
(1) Ohio Optical Dispensers Board
(2) Registrar of Motor Vehicles (with respect to motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools)
(3) Construction Industry Licensing Board
(4) Hearing Aid Dealers and Fitters Licensing Board
(5) Public Safety (with respect to private investigators and security guards)
• Definitions“Disqualifying offense” is defined as “an offense that is a felony and
that has a direct nexus to an individual’s proposed or current field of licensure, certification, or employment.”
Crime of “moral turpitude” is defined as:
(1)Aggravated murder or murder, or complicity to commit aggravated murder or murder.
(2)Any sexually oriented offense.
(3)Any first or second degree offense of violence.
(4)Any attempt or conspiracy to commit or complicity in committing any of the offenses listed in (1) through (3), above, if the attempt, conspiracy, or complicity is an F1 or F2.
• Exception: The licensing board or agency may exercise discretion in denying the license, even if the conviction was for an offense other than a disqualifying offense or crime of moral turpitude if:o The applicant was convicted of a
misdemeanor less than one year or a felony less than 3 years prior to the date of the application.
• Conditional Licenses
Senate Bill 337 authorizes a licensing agency to issue a conditional license, certification, or permit that lasts for one year, after which time the conditional license, certification, or permit becomes permanent.
• Trainee Licenses
Senate Bill 337 specifies that no agency that issues a trainee license may issue that license to an applicant who would not be eligible for issuance of a license, certificate, registration, permit, card, or other authority to engage in the profession or operation for which the trainee would apply.
• Definition of “Trainee License”
A license, certificate, registration, permit, card, or other authority that is issued by any licensing agency that authorizes the holder to engage as a trainee in a profession, occupation, or occupational activity, or to operate as a trainee certain specific equipment, machinery, or premises.
• State Board of Cosmetology-specific provisions
(1) Senate Bill 337 prohibits the Board from denying certification on the basis of prior incarceration or conviction for a crime.
(2) Senate Bill 337 requires the Board to assist ex-offenders and military veterans who hold licenses to find employment.
• Casino Control Commission-specific provisions(1)Requires the Commission to provide a written statement to
each applicant who is denied a license that describes the reason(s) for the denial.
(2)Requires that, not later than January 31 in each calendar year, the Commission provide to the General Assembly and the Governor a report that, for each type of license issued under the Casino Control Law, specifies the number of applications made in the preceding calendar year for each type of such license, the number of applications denied in the preceding calendar year for each type of such license, and the reasons for those denials.
• Under prior law, an individual could not petition his or her sentencing court to have the record of a criminal conviction sealed unless the individual was a first offender (i.e., the individual could have no more than one felony or misdemeanor conviction in any jurisdiction in the country).
• Senate Bill 337 expands eligibility for record sealing to offenders who satisfy one of the following conditions:
(1) The offender has no more than one felony conviction;
(2) The offender has no more than two misdemeanor convictions if the convictions are not for the same offense; or
(3) The offender has not more than one felony conviction and not more than one misdemeanor conviction.
• As a general rule, the records of convictions involving child victims cannot be sealed. This has been interpreted as including convictions for nonsupport.
• Senate Bill 337 removes the prohibition against sealing the records of nonsupport convictions, provided that the offender applying for sealing otherwise qualifies to have the records sealed.
• Imputed Income: Generally
When a parent’s income is determined as part of the child support calculation, the court or child support enforcement agency (CSEA) must consider not only the parent’s gross income, but also any potential income that is imputed to a parent who is voluntarily unemployed or underemployed.
• Imputed Income: Current Interpretation
Ohio appellate courts have generally held that a parent’s incarceration constitutes voluntary unemployment or underemployment.
• Imputed Income: New ExclusionSenate Bill 337 prohibits a court or CSEA from determining that a
parent is voluntarily unemployed or underemployed and from thereby imputing income to that parent if the parent is incarcerated or institutionalized for a period of 12 months or more with no other available assets.
EXCEPTIONS: This requirement does not apply if the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order or criminal offense when the obligee or a child who is the subject of the support order is a victim of the offense. Further, this requirement does not apply if its application would be unjust or inappropriate and therefore not in the best interests of the child.
• Imputed Income: Current FactorsIn determining imputed income, current law
requires the court or CSEA to consider a number of factors, including, but not limited to, the parent’s employment history; the parent’s education, mental, and physical disabilities; the parent’s social skills and training; and the parent’s increased earning capacity because of experience.
• Imputed Income: New SB 337 Factor
Senate Bill 337 includes an additional factor in determining imputed income: the parent’s decreased earning capacity because of a prior felony conviction.
• Discretionary Disregard of Additional Income
Senate Bill 337 specifies that a court or CSEA may disregard a parent’s additional income from overtime or additional employment when the court or CSEA finds that the additional income was generated primarily to support a new or additional family member or members, or under other appropriate circumstances.
• Multiple OrdersSenate Bill 337 provides that if both parents involved in the
immediate child support determination have a prior order for support for a minor child or children born to both parents, the court or CSEA must collect information about the existing order or orders and consider those together with the current support calculation to ensure that the total of all orders for all children of the parties does not exceed the amount that would have been ordered if all children were addressed in a single judicial or administrative proceeding.
• Certain DUS Violations-Penalty Reductions
Senate Bill 337 specifies that if a person is convicted of DUS and the suspension was imposed for one of a number of offenses in which driving was not one of the main elements of the offense, the offense is an unclassified misdemeanor (same as existing law) on a first offense and an M4 on a third or subsequent offense within three years (lowered from an M1).
• DUS Penalty Reductions (continued):Applies to the following DUS offenses:
(1)Disposition of an unruly child.
(2)Possession, use, purchase, or receipt of cigarettes or other tobacco products by child.
(3)Failure to appear in court to answer a citation issued for any of a number of specified minor misdemeanors.
(4)Being in default or noncompliance with child support order.
(5)Violation of certain provisions relating to beer or intoxicating liquor.
• DUS Penalty Reductions (continued):(6)Failure to appear to answer a charge alleging a specified motor
vehicle operation or equipment violation or a general motor vehicle-related violation, or to pay a fine imposed for such violation.
(7)Use of a fictitious or altered driver’s license or a driver’s license belonging to another person by a person under 21 in order to purchase beer or intoxicating liquor.
The bill eliminates all other penalties that previously applied to DUS based upon offenses (1) through (7), above, including filing proof of financial responsibility with the court, restitution, an additional suspension, and immobilization or forfeiture of the vehicle.
• Financial Responsibility Violations/Nonpayment of Judgment
Senate Bill 337 provides that if a person is convicted of DUS and the suspension was imposed for violating the state financial responsibility law, the offense is an unclassified misdemeanor on a first offense (same as existing law) and an M4 on a third or subsequent offense within three years (lowered from an M1). The bill eliminates all other penalties that currently apply to the offense, including filing proof of financial responsibility with the court, restitution, an additional suspension, and immobilization or forfeiture of the vehicle.
• Community Service in Lieu of SuspensionFor the following offenses, Senate Bill 337 provides that the court, in lieu of
imposing a suspension, may order community service:
(1) Soliciting.
(2) Theft of gasoline from a retail seller.
(3) Illegal conveyance of a deadly weapon or dangerous ordnance into a school safety zone.
(4) Consumption of beer or intoxicating liquor in a motor vehicle by a person under 18.
(5) Giving false information in order to purchase beer or intoxicating liquor by a person under 21.
(6) Trafficking in cigarettes while using a motor vehicle.
In addition, for the offenses listed in (1), (4), (5), and (6), above, Senate Bill 337 changes the mandatory suspension that applied under prior law to discretionary suspensions.
• Nonsupport-Related Suspensions: Limited Driving Privileges
Senate Bill 337 permits a court, in connection with a contempt action filed against a person for failure to pay support, to grant limited driving privileges to a person whose driver’s license is suspended by the Registrar of Motor Vehicles because the Registrar received a notice from a CSEA indicating that the person is in default or noncompliance under a child support order.
• Reinstatement FeesSenate Bill 337 permits the Registrar of Motor
Vehicles, with approval from the Director of Public Safety, to adopt rules that permit a person to pay reinstatement fees in installments.
(Senate Bill 337 maintains a provision in current law, which allows courts to permit individual offenders to pay driver’s license reinstatement fees in installments.)
• Financial Responsibility ProvisionsSenate Bill 337 eliminates the requirement that the
Registrar of Motor Vehicles suspend the driver’s license of any person who is named in a motor vehicle accident report that alleges that the person was uninsured at the time of the accident and then fails to give the Registrar acceptable proof of financial responsibility.
• Financial Responsibility Provisions (continued)Senate Bill 337 modifies some of the civil penalties that apply to a
person who does not maintain proof of financial responsibility:
(1)Subject to (2) and (3), below, changes the period of suspension from a Class E (three months) to a Class F (until conditions are met) and also eliminates a provision that conditions limited driving privileges on the presentation of proof of financial responsibility and payment of all fees owed to the Registrar.
(2)Does not change the civil penalties that apply with respect to a person whose operating privileges are again suspended and license again impounded for such a violation, within five years of the violation.
(3)Authorizes a court to grant limited driving privileges to offenders described in (2), above.
• Fifteen-Plus Year License SuspensionsSenate Bill 337 provides a new set of circumstances that a person whose
driver’s license has been suspended for life (Class 1) or for a period in excess of 15 years (Class 2) may demonstrate to the court in order to be granted a modification or termination. The bill authorizes modification or termination for offenders who demonstrate that they have not had a moving violation within five years; have not committed a vehicular homicide or manslaughter; and, in the preceding five years, have not violated a suspension. As under preexisting law, the offender must also have proof of insurance. If the suspension was imposed for an OVI, the offender must also have completed a treatment program and, for the past 15 years, the person has not been found guilty of any alcohol-related or drug-related offense. (Prior law required that the offender not have any felony conviction within the preceding 15 years.)
• Motor Vehicle Equipment ViolationsThe bill lowers the penalties for the following
offenses, establishing each as a minor misdemeanor in all circumstances:
(1)Driving or moving a vehicle or combination of vehicles in a manner that endangers any person. (Under prior law, the offense was a MM on a first violation and M3 on each subsequent violation.)
• Motor Vehicle Equipment ViolationsLowered Penalties—MM in all circumstances (continued): (2) Operating on the public roads a vehicle that is registered in Ohio
and does not conform to the statutory provisions or rules governing the height of bumpers or modifying a vehicle in a dangerous manner. (Under prior law, the offense was a MM on a first violation and M3 on each subsequent violation.)
(3) Certain motor vehicle equipment violations and all other motor vehicle equipment violations for which no penalty was otherwise provided. (Under prior law, the offenses for which the penalties were lowered were previously MM’s on a first violation, M4’s on a second violation within one year of the first violation, and M3’s on each subsequent violation within one year after the first violation.)
• BMV Amnesty Study CommitteeSenate Bill 337 requires the Department of Public
Safety to conduct a study on the advisability and feasibility of establishing in Ohio a one-time amnesty program for the payment of fees and fines owed by persons who have been convicted of motor vehicle traffic and equipment offenses or have had their driver’s licenses suspended for any reason.
• Places of Detention: Age Thresholds
Prior law authorized juvenile courts to order the confinement of persons adjudicated a delinquent child after turning 18 in places other than those authorized solely for confinement of children. Senate Bill 337 increases the threshold age to 21.
• Places of Detention: New Hearing Procedure
Senate Bill 337 specifies that any person whose case is transferred to another court for criminal prosecution or any person who has reached the age of 18 but not attained 21 may be held in a place other than those authorized solely for the confinement of children only if, after a hearing, the juvenile court finds by a preponderance of the evidence that the youth is a threat to the safety and security of the facility.
• Places of Detention: Hearing FactorsFactors serving as evidence that a youth is a threat to safety and
security include, but are not limited to:
(1)The youth has injured or created imminent danger to the life or health of another youth or staff member by violent behavior;
(2)On more than one occasion, the youth escaped from the facility or program in which the youth is being held.
(3)The youth established a pattern of disruptive behavior by written record that the youth’s behavior is not conducive to the established policies and procedures of the facility or program where the youth is being held.
• Places of Detention: Review Hearings If the juvenile court determines that a place other
than those generally considered to be for the placement of children is appropriate, the person may petition the juvenile court for a review hearing 30 days after the initial confinement decision, 30 days after any subsequent review hearing, or at any time after the initial confinement decision upon an emergency petition by the youth due to the youth facing imminent danger.
• Sealing Juvenile Records
Prior law prohibited the sealing of records of a juvenile adjudication for committing aggravated murder, murder, rape, sexual battery, or gross sexual imposition (GSI). Senate Bill 337 removes sexual battery and GSI from the list of offenses for which the records may not be sealed.
• Sealing Juvenile Records: Application Process
Senate Bill 337 reduces from two years to six months the period of time that must elapse following the termination of a juvenile court order or discharge from DYS, as the case may be, before a person may apply to the juvenile court for sealing of the record of the adjudication.
• Sealing Juvenile Records: Criminal Records Checks
Senate Bill 337 excludes most juvenile proceedings and adjudications from criminal records checks. Exception: The bill permits the release of information pertaining to juvenile adjudications under which the juvenile court, pursuant to a return bindover, imposed an SYO disposition upon the person for aggravated murder, murder, or a sex offense for which the person is required to register.
• Moving the “have you been convicted of a crime?” box on state applications – a collaboration between DRC and DAS
• Online database about the civil impact of criminal convictions.
• The website provides an online database and search tools that allow users to learn about the collateral consequences of a conviction in Ohio.
• Using the CIVICC database, you can:
(1) Look up a criminal offense and find out what legal barriers are likely to apply in addition to the sentence.
(2) Look up a particular right or privilege and find out what type of criminal conviction might block a convicted person from enjoying it.
(3) Search for all of the legal side effects of a certain type, such as all of the barriers to employment in a particular field.
• The database can be found at: opd.ohio.gov/CIVICC/
• QUESTIONS