Starting over with a clean slate: in praise of a forgotten section of the Model Penal Code.

• Author: Love, Margaret Colgate

There has been surprisingly little recognition of the fact that our system of penal law is largely flawed in one of its most basic aspects: it fails to provide accessible or effective means of fully restoring the social status of the reformed offender. We sentence, we coerce, we incarcerate, we counsel, we grant probation and parole, and we treat--not infrequently with success--but we never forgive. (1)

INTRODUCTION

The collateral consequences of a criminal conviction linger long after the sentence imposed by the court has been served, depriving ex-offenders of the tools necessary to reestablish themselves as law-abiding and productive members of the free community. While most jurisdictions make some provision for eventual removal of these collateral penalties, relief mechanisms are generally inaccessible, of ineffective, or both. The result is that convicted felons have no realistic hope of satisfying their debt to society, of regaining a place in it. (2) A recent American Bar Association report concluded that:

[T]he dramatic increase in the numbers of persons convicted and imprisoned means that this half-hidden network of legal barriers affects a growing proportion of the populace. More people convicted inevitably means more people who will ultimately be released from prison or supervision, and who must either successfully reenter society or be at risk of reoffending. If not administered in a sufficiently deliberate manner, a regime of collateral consequences may frustrate the reentry and rehabilitation of this population, and encourage recidivism. (3) If pressed, most Americans are uncomfortable with a justice system that is so unforgiving. And, as a practical matter, states are having second thoughts about the economic burdens such a system imposes. (4) It therefore seems timely to suggest that jurisdictions take steps to limit the scope and duration of collateral legal penalties, and find a way to welcome the repentant and rehabilitated offender back into the community.

This Article proposes a legal framework for accomplishing these objectives. This framework is premised on a notion that the goal of corrections must be the full and early reintegration of a criminal offender into free society, with the same benefits and opportunities available to any member of the general public. It institutionalizes this goal by integrating it into the sentencing scheme, and making it an important responsibility of the sentencing judge. It is concerned not only with the specific sanctions imposed by the legal system, but also with the degradation of social status often called "the stigma of conviction." (5)

One thing that surprised me when I began working on the idea for this Article was how much had already been done and largely forgotten. On the theory that those who do not study the past are condemned to repeat it, Part I describes the law reform effort of the 1960s and 1970s, and the reformers' vision of how rights and status could be restored to convicted criminals. Part II reviews the state of the law today, and concludes that restoration procedures in state and federal law have become less and less effective over the past twenty years. Part III advocates for the approach to restoration of rights in the ABA Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons, (6) and argues that it can best be implemented by the two-tiered mechanism in section 306.6 of the Model Penal Code. This mechanism seeks to accomplish an offender's reintegration into society not by trying to conceal the fact of conviction, but by advertising the evidence of rehabilitation.

1. HISTORICAL BACKGROUND--BACK TO THE FUTURE

   Forty years ago, in a time that now seems very far away, optimistic law reformers set out to build a legal framework to limit collateral penalties and provide for the early restoration of forfeited rights to those convicted of crimes. They believed in giving people a second chance, and that this was, in any event, the best way to reduce recidivism.7 These reformers recognized that it was not enough simply to restore legal rights; they would also have to address the more subtle punishment represented by societal prejudice against the criminal offender that lingers long after the penalties prescribed by law have been fully satisfied. (8) As will become clear in the following section, this second-level problem of restoring lost status proved a conceptual and practical challenge.

   1. Early Restoration Proposals

      In 1956, the National Conference on Parole, held under the joint auspices of the Attorney General of the United States, the United States Board of Parole, and the National Council on Crime and Delinquency ("NCCD"), called for the abolition of laws depriving convicted persons of civil and political rights, describing them as "an archaic holdover from early times." (9) More radically, the conference called for the adoption of laws empowering a sentencing court, at the point of discharge from sentence or release from imprisonment, "to expunge the record of conviction and disposition, through an order by which the individual shall be deemed not to have been convicted." (10)

      At the time, a handful of states provided for automatic restoration of rights upon completion of sentence, but most relied upon a governor's pardon. (11) The reformers felt that both of these approaches were of limited value: automatic restoration did not provide confirmation of good character so as to overcome occupational and professional licensing restrictions, and pardon was an inherently unreliable remedy, especially for those with limited means and few connections. (12) What they were looking for was an accessible and thorough-going mechanism by which the reformed offender could be returned to society's good graces.

      The concept of expungement or sealing of convictions had developed in the 1940s in connection with specialized state sentencing schemes for youthful offenders, whose susceptibility to antisocial conduct was thought to be temporary and who were therefore considered "easier to rehabilitate than adults." (13) The idea was to minimize the legal consequences of conviction, and give youthful criminals "an incentive to reform" by "removing the infamy of [their] social standing." (14) In 1950, Congress extended the "clean slate" concept to federal offenders between the ages of eighteen and twenty-six, making them eligible to have their convictions "set aside" if the court released them early from probation. (15) While the federal courts were never able to agree about exactly what the "set-aside" provision in the Youth Corrections Act was supposed to accomplish, (16) mirroring a similarly ambivalent approach to state "expungement" laws, (17) the basic idea was to have a court grant relief that would be more complete than a pardon, and more respectable than an automatic or administrative restoration of rights. (18) The purpose of judicial expungement or set-aside was to both encourage and reward rehabilitation, by restoring social status as well as legal rights. (19)

      It was perhaps inevitable, given the optimistic temper of the times, that reformers would seek to extend the "clean slate" concept to adult offenders. A model statute proposed in 1962 by the NCCD gave the sentencing court discretionary authority to "annul" adult convictions, the effect of which was to restore all civil rights and "enable an individual to say, in testifying or in filling out applications of various kinds, that he had not been convicted." (20) The NCCD proposal dealt with the awkward issue of candor by proposing to limit what employers and licensing boards could ask: "Have you ever been arrested for or convicted of a crime which has not been annulled by a court?" (21) The NCCD report noted that while six states had enacted expungement statutes applicable to adult offenders, only Wyoming's extended to those sentenced to a prison term. (22)

   2. The Model Penal Code Takes a Different Tack

      In 1962, the same year that the NCCD report was issued, the American Law Institute's Model Penal Code ("MPC") proposed a more nuanced way of dealing with restoration of rights and status. (23) Under section 306.6 of the MPC, the sentencing court would be empowered, after an offender had fully satisfied the sentence, (24) to enter an order relieving "any disqualification or disability imposed by law because of the conviction." (25) After an additional period of good behavior, (26) the court could issue an order "vacating" the judgment of conviction. (27)

      The effect of orders relieving disabilities or vacating the judgment of conviction, including the uses to which a conviction could still be put, was spelled out in detail. (28) Inter alia, the conviction itself could no longer serve as the basis for disqualification, through it could be used to prove the offense conduct if relevant to the sought-after benefit or opportunity. A distinguishing feature of the MPC approach was its treatment of the issue of candor: neither a restoration order under (1), nor a vacation order under (2) would "justify a defendant in stating that he has not been convicted of a crime, unless he also calls attention to the order." (29)

      The MPC's two-tiered process was evidently intended to accomplish the maximum by way of legal and social restoration for rehabilitated ex-offenders. (30) But it was specifically not intended to remove the conviction from the records, or indulge the fiction that the conviction had somehow never taken place. (31) Unlike the NCCD proposal, the MPC did not propose to rewrite history, but rather to confront history squarely with evidence of change. (32)

   3. The Reform Movement Peaks and Collapses

      Over the next twenty years, national commissions and professional societies urged attention to the problem of collateral consequences and their effect on offender reintegration, (33) and more model laws and standards were proposed. (34) In 1981, the ABA and...