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Collateral Consequences of a Criminal Conviction

Collateral Consequences of a Criminal Conviction

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Published by: Brian Martin on May 20, 2011
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FED 1
 Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, January 2007 
J
ANUARY
17,
 
2007
 
F
EDERAL
*
 I.
 
Automatic Restoration of Rights:
 
Vote: Right to vote depends upon state law, for both state and federal offenders.
See Richardson v. Ramirez
, 418 U.S. 24, 54 (1974). Most states that do not restorethe right to vote automatically give federal offenders access to their restorationprocedures.
See
Resource Guide, Part V.
 
Jury: Eligibility for federal jury service is lost upon conviction in state or federalcourt of a crime punishable by more than one year if a person’s “civil rights havenot been restored.” 28 U.S.C. § 1865(b)(5). The courts and the AdministrativeOffice of United States Courts interpret this provision to require an affirmative act(such as a pardon or expungement) to restore federal jury eligibility.
See, e.g.,United States v. Hefner 
, 842 F.2d 731, 732 (4th Cir. 1988) (legislative history of §1865(b)(5) indicates that “some affirmative act recognized in law must first takeplace to restore one’s civil rights to meet the eligibility requirements of section1865(b)(5)”). Thus the automatic restoration of rights that takes place in manystates upon completion of sentence will not be sufficient.
See
 
Paul J. Komives &Peggy S. Blotner,
 Loss and Restoration of Civil Rights Affecting Disqualification for Federal Jury Service
, 70
 
M
ICH
.
 
B
US
.
 
L.J.
 
542 (1991).
 
Office-holding: The U.S. Constitution does not prohibit convicted persons from
 
holding office, but some statutes provide that conviction will result in the loss of 
 
office.
See, e.g.,
18 U.S.C. § 201(b) (sentencing court may order disqualificationfrom federal office of official convicted for bribery); “Federal Statutes ImposingCollateral Consequences Upon Conviction,” U.S. Department of Justice, Office of 
 
the Pardon Attorney, at 2-3 (“OPA Federal Summary”), available athttp://www.usdoj.gov/pardon/collateral_consequences.pdf (hereinafter OPA
 
Federal Summary). A felony conviction does not disqualify a person from federal
 
employment, but may be considered in connection with determining suitability.
 
Labor organizations: Prohibitions relating to office-holding in labor organizations
 
and employee benefit plans last 13 years, but may be removed earlier if civil rightshave been “fully restored” or if a federal court or the Parole Commission so directs.
 
29 U.S.C. §§ 504, 1111.
 
Federal defense contractors:
o
 
Defense Contractor Personnel: Persons convicted of fraud or any felony arising
 
out of a contract with the Department of Defense are prohibited for a period of “not less than five years after the date of conviction” from working in amanagement or supervisory capacity with a defense contractor, or from serving on
*
Includes military cases prosecuted under the UCMJ.
 
FED 2
 Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, January 2007 
the board of directors or acting as a consultant for any company that is a defensecontractor. 10 U.S.C. § 2408(a). (Waiver prior to five years available fromSecretary of Defense “in the interests of national security.” § 2408(a)(3).)
o
 
DOD Security Clearance:
See
part III,
infra.
 
o
 
Discretionary relief may be available from a variety of other federal collateral
 
disabilities from responsible agency officials.
See
OPA Federal Summary,
supra
,at 15-16;
see also
parts IIC and III,
infra.
 
II. Discretionary Restoration Mechanisms:
A. Executive pardon:
 
 Authority
: Exclusively in President, cannot be limited or regulated by Congress. U.S.Const. Art. II, sec. 2. By Executive Order, Attorney General is charged withproviding advice on pardon policy and investigating and making recommendations onall applications for pardon and commutation.
See
28 C.F.R. Part 1.
 
 Eligibility
: Five years after completion of sentence, beginning upon release fromprison, or date of sentencing if not incarcerated. Waiver possible. Ordinarily musthave completed parole. 28 C.F.R. Part 1. Offenders whose convictions wereprosecuted under the Uniform Code of Military Justice are eligible to apply for apresidential pardon, as are D.C. Code offenders.
 
 Effect 
: A pardon “in no way reverses the legal conclusion of the courts; it “’does notblot out guilt or expunge a judgment of conviction.’”
 Hirschberg v. CommodityFutures Trading Com'n
, 414 F. 2d 679, 682 (7
th
Cir. 2005),
citing
 
 In re North,
62F.3d 1434, 1437 (D.C.Cir.1994). S
ee also Nixon v. United States,
506 U.S. 224, 232(1993) (“a pardon is in no sense an overturning of a judgment of conviction by someother tribunal”);
 Burdick v. United States,
236 U.S. 79, 94 (1915) (a pardon “carriesan imputation of guilt”). The effect of a presidential pardon is not to prohibit allconsequences of a pardoned conviction, but rather to preclude future punishment forthe conviction.
See Nixon,
506 U.S. at 232;
 Bjerkan v. United States,
529 F.2d 125,127-28 (7th Cir.1975). Thus a pardon relieves legal disabilities arising under state orfederal law solely by virtue of the conviction, but it does not preclude adverse actiontaken on the basis of the conduct underlying the conviction.
See
Effects of aPresidential Pardon, 19 Op. Off. Legal Counsel No. 160, 1995 WL 861618 (June 19,1995). In this regard, a pardon may be taken as evidence of rehabilitation and goodcharacter.
 
Process
: Application to Office of the Pardon Attorney (OPA), U.S. Department of Justice, on a form provided by that office.
See
 http://www.usdoj.gov/pardon/pardon_petition.htm. Investigation by OPA, which inmeritorious cases will include an FBI background investigation and inquiry to U.S.Attorney and sentencing judge, recommendation through Deputy Attorney General toPresident. No formal hearing. Official pardon recommendations and OPA advice to
 
FED 3
 Margaret Colgate Love, Relief from the Collateral Consequences of a Criminal Conviction, January 2007 
President are confidential. Pardon recommendations handled in White House byOffice of White House Counsel. Processing time varies in ordinary cases from 18months upwards: there is no time limit on the consideration of federal pardon cases,and as of August 2005 some applications had been pending since the ClintonAdministration.
 
Criteria
: Standards applicable to Justice Department review of pardon applicationsare set forth in § 1-2.112 of 
 
United States Attorneys Manual.http://www.usdoj.gov/pardon/petitions.htm. Factors to be considered include
o
 
1)
Post-conviction conduct, character, and reputation (“
An individual'sdemonstrated ability to lead a responsible and productive life for a significantperiod after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon. The background investigationcustomarily conducted by the FBI in pardon cases focuses on the petitioner'sfinancial and employment stability, responsibility toward family, reputation inthe community, participation in community service, charitable or othermeritorious activities and, if applicable, military record. In assessing post-conviction accomplishments, each petitioner's life circumstances areconsidered in their totality: it may not be appropriate or realistic to expect"extraordinary" post-conviction achievements from individuals who are lessfortunately situated in terms of cultural, educational, or economicbackground.”
o
 
2. Seriousness and relative recentness of the offense:
When an offense isvery serious (e.g., a violent crime, major drug trafficking, breach of publictrust, or white collar fraud involving substantial sums of money), a suitablelength of time should have elapsed in order to avoid denigrating theseriousness of the offense or undermining the deterrent effect of theconviction. In the case of a prominent individual or notorious crime, the likelyeffect of a pardon on law enforcement interests or upon the general publicshould be taken into account. Victim impact may also be a relevantconsideration. When an offense is very old and relatively minor, the equitiesmay weigh more heavily in favor of forgiveness, provided the petitioner isotherwise a suitable candidate for pardon.”
o
 
3. Acceptance of responsibility, remorse, and atonement.
The extent towhich a petitioner has accepted responsibility for his or her criminal conductand made restitution to its victims are important considerations. A petitionershould be genuinely desirous of forgiveness rather than vindication. While theabsence of expressions of remorse should not preclude favorableconsideration, a petitioner's attempt to minimize or rationalize culpability doesnot advance the case for pardon. In this regard, statements made in mitigation(e.g., "everybody was doing it," or "I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence ormiscarriage of justice bear a formidable burden of persuasion.”
o
 
4. Need for relief.
The purpose for which pardon is sought may influencedisposition of the petition. A felony conviction may result in a wide variety of 

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