CONVICTION: CIVIL DISABILITIES
When a person leaves prison, or is released from probation or parole, the most long-lasting aspect of his criminal conviction may only be beginning. Every state, to a greater or lesser degree, prohibits an ex-felon from exercising some of the most basic rights of free citizens, ranging from the right to vote to the right to employment by the state. Although some states impose civil disabilities only if the convicted felon has been imprisoned, where this limitation does not exist, "collateral" consequences for the 50 percent of felons who are not imprisoned are anything but collateral; they may well be the most persistent consequences inflicted for crime.
The view that criminals forfeit their rights as citizens is not new. Both the Greeks and Romans imposed on a convicted person the punishment of "infamy," which forbade him to exercise the rights of a free citizen. Early English law followed the same principle: a person convicted of a felony was declared "attainted," losing all his civil rights and forfeiting his property; collectively, these sanctions were called "civil death." More dramatic was the doctrine, based on the fiction that the criminal's act evidenced his entire family's corruption, of "corruption of the blood," which prohibited the felon's heirs from inheriting his estate. Since in most instances the felon in England was executed, this consequence of his act fell upon his family and heirs, who lost whatever property he had owned. When the death penalty was abolished for many crimes in nineteenth-century England this sanction might have died as well. Indeed, the U.S. Constitution specifically prohibited corruption of blood except in the case of a person convicted of treason. Nonetheless, the notion of civil death persisted, and many of the rights that would have died with the executed felon in medieval England continued to be denied to the felon who, in nineteenth-century America and England, was merely imprisoned and later released. The vast majority of states have now rejected the idea of a blanket death as an adjunct of conviction for a crime, but every state, to some degree, still imposes civil disabilities on ex-offenders.
The predicates for imposing civil disabilities
Considerable variation exists among the states as to which civil disabilities are imposed and when they apply. By far the most common basis for imposing civil disabilities is a conviction for a felony. Although the term felony is not always consistently defined, it typically means a crime for which a year or more of imprisonment may be imposed. Thus, the same civil disability is often visited both on a person convicted of first-degree murder and on one convicted of a relatively minor crime. Some states, however, impose such disabilities only after conviction for certain enumerated felonies. As a third alternative, in some states conviction of a "crime of moral turpitude" or of an "infamous crime" is the basis for civil disabilities. Thus, the distinction between a felony and misdemeanor, which often plays a role in many aspects of criminal law, is ignored, thereby subjecting to civil disabilities a person convicted of misdemeanors that are thought to reflect some weakness of morals or moral behavior. This attempt to be more discerning actually widens the net. One court, for example, has ruled that the term moral turpitude includes any offense that is "contrary to justice, honesty, principle, and good morals" (In re Hatch, 10 Cal. 2d 147, 73 P.2d 885 (1937)). The ambiguity of this standard was revealed in a later decision by the same court, which held that failure Page 250 | Top of Article to report for the Selective Service draft during World War II was not a crime of "moral turpitude" (Otsuka v. Hite, 64 Cal. 2d 596, 414 P.2d 412 (1966)).
Civil disabilities are usually imposed without any necessary connection between a specific disability and the crime that has been committed. Thus, a person convicted for a drug violation may find himself forbidden to vote or even to make contracts, even though his crime has no obvious bearing on his ability capably to engage in these activities. Although the issue is not clear, such provisions are probably constitutional (Hawker v. New York, 170 U.S. 189 (1898)). Yet it surely seems sensible, at least if the notion of civil death is abjured, to require that there be some "rational connection" between the crime and the specific disability imposed. Under such a scheme, a person convicted of bribery might be disqualified from public employment or from serving on a jury, and an embezzler might be prohibited from working as a bank teller or in another capacity involving funds or records. But neither could be barred from exercising private rights, or suffer other disabilities unrelated to the crime for which he was convicted.
Specific rights lost
Public rights. Apparently on the premise that violation of the criminal law indicates a general lack of respect for law and for the obligations of citizenship, most states, as well as the federal government, have barred former offenders from participating in a number of public activities normally open to citizens—some of which indeed are considered obligations of citizenship.
The right to citizenship. No right is more basic or all-encompassing than citizenship itself. In a number of decisions, the U.S. Supreme Court has either directly invalidated or cast substantial doubt upon attempts by Congress to revoke naturalized citizenship for such crimes as desertion in time of war or residing for three years in a foreign country of birth (Trop v. Dulles, 356 U.S. 86 (1958); Schneider v. Rusk, 377 U.S. 163 (1964)).
The right to vote. Next to citizenship itself, the right to vote is probably the single most important political right held by a citizen. Yet fourteen states now provide for the permanent disenfranchisement of convicted felons, while most others allow restoration of the right. (On the other hand, some states provide prisoners with absentee ballots, thus encouraging them to remain politically aware.) Many of these provisions are found in state constitutions rather than in statutes, reflecting a deeply and widely held belief that the right to participate in democracy's most basic exercise is forfeited by criminal action. In 1974 the Supreme Court upheld such a provision in the California constitution, relying on a provision of the Fourteenth Amendment to the U.S. Constitution that was interpreted to allow such disenfranchisement (Richardson v. Ramirez, 418 U.S. 24 (1974)).
The right to hold public office. Twenty-five states have constitutional or statutory provisions disqualifying persons convicted of certain crimes from holding or retaining public office. These disabilities sometimes extend beyond the term of sentence of the crime, and generally apply to local as well as state public offices, and to appointive as well as elective positions. Court decisions have held, for example, that the term public office includes the positions of city manager, postmaster, school board member, county treasurer, and justice of the peace. Congress has similarly enacted legislation providing that persons convicted of certain offenses cannot hold federal office (for example, 18 U.S.C. §§ 593, 1901, 2071). Yet nothing in the U.S. Constitution prohibits such persons from being elected to Congress itself or, for that matter, from being elected president. Whether or not one agrees with the disqualification of former offenders from holding appointive office, barring them from elective public office seems particularly hard to defend. Theoretically, the electorate should be able to assess for itself the offense's bearing on the candidate's ability to perform the job.
Judicial rights. Various provisions affect what might be called judicial rights. Some state laws provide that a person convicted of or imprisoned for certain offenses cannot litigate in the state's courts for the period of disability, often the term of imprisonment. In most instances these statutes allow the prisoner to bring his suit after the disability is lifted. However, this is far from a perfect remedy, since the passage of time may affect the memories or availability of witnesses, or result in other difficulties that the litigant would encounter on release. Moreover, it still leaves the offender, while encumbered with the disability, without the right to appear in court and to represent his own interests. Some state statutes make provision for the appointment of a substitute or counsel for the prisoner, but impediments to receiving the full protection of the courts and the legal system still remain substantial.
A second judicial right clouded by a criminal conviction is the right to testify in court. Most states do not automatically disqualify offenders from appearing as witnesses, unless the conviction was for perjury; these statutes are all that remains of the common law doctrine that persons convicted of serious crimes were incompetent to testify. However, in virtually every state, a previously convicted witness may be questioned about his past record. This rule has the valid purpose of informing the jury about facts that may be relevant to the witness' credibility, but discourages witnesses—and particularly persons charged with new crimes—from testifying in court. Some states, as well as the federal courts, have restricted the use of such "impeachment" evidence to recent convictions, on the ground that older convictions are no longer sufficiently relevant.
A third judicial right sometimes rescinded is the right to perform fiduciary duties. A criminal conviction may prevent the offender from holding a court-appointed position of trust, from serving as the executor of a will or administrator of an estate, or from being a guardian of a person or estate. For example, a testamentary guardian named in a will by the parents of a minor or of an incompetent person must be approved by the court. A few jurisdictions disqualify any nominee who has been convicted of a felony or infamous crime.
By far the most symbolic disqualification from judicial rights is the barrier to serving on a jury. Although only a handful of states automatically prohibit such service for all convicted felons, approximately thirty states expressly exclude permanently from jury service persons who have been convicted of certain crimes. Such an automatic disqualification might be rational when applied to perjury, but less persuasive when applied to assault. Furthermore, where a state statute provides that a juror must have "good character," evidence of a conviction may be sufficient to result in disqualification. A requirement that a juror be a qualified elector will, of course, result in incapacity to be a juror in those states that disfranchise felons. As with the issue of holding public office, the concern that motivates this disqualification is clear, but as with that concern, there is a less drastic approach—disclosure of the potential juror's criminal record should be sufficient to protect the interests of the parties.
Registration. Pursuant to what amounts to a federal mandate, virtually all states now require persons convicted of sexual offenses (variously defined) to register their addresses with police after they have been released from prison. Many of these states also provide for dissemination of this information to the community, in an apparent attempt to prevent future sexual offenses, primarily, but not solely, against children. Moreover, a majority of states now require such registration (but not community notification) of all convicted felons.
Family and personal rights. Conviction of a crime may jeopardize the offender's relationship to her family in several ways. Incarceration, of course, severely hampers this relationship. But beyond this, in many states conviction alone, or conviction and imprisonment, may provide the impetus to legal dissolution of family ties. A convict subject to civil death may be forbidden to marry; many others, either while incarcerated or on conditional liberty, may find their right to marry subject to the scrutiny and approval of a warden, or a probation or parole officer. More commonly (twenty-nine states), a conviction may be declared grounds for divorce; in some states, a divorce will be automatically granted if the convicted spouse is actually incarcerated, or when civil death is incurred.
Nineteen states provide statutorily that conviction or imprisonment may result in the forfeiture of parental rights. Even in those states not so providing, imprisonment may serve as a basis for a finding of abandonment; in dependency and neglect proceedings a parent's criminality may be grounds for terminating parental rights. In virtually every state, a conviction is evidence of unfitness in a custody proceeding. Further, some states rule that a person's imprisonment renders unnecessary his consent to the adoption of his children by others, although most provide such a draconian penalty only in the event of lengthy incarceration.
At common law, the convicted felon generally possessed the right to inherit. The aversion of the colonists to bills of attainder generally ensured that this right would continue. But in the twentieth century many jurisdictions have legislated an exception, providing that a felonious slayer cannot inherit from his victim. This new doctrine has been universally upheld as constitutional.
Government benefits. A criminal conviction may also prevent the offender from participating in insurance, pension, workers' compensation, or other public benefit programs. The federal Page 252 | Top of Article government, for example, disqualifies some felons from public housing. Similarly, a number of states have enacted statutes that directly prohibit convicted criminals from benefiting from pension funds in some instances. Finally, a criminal conviction adversely affects the offender's right to receive worker's compensation benefits; in most states, convicts are not entitled to such benefits for injuries sustained while they are incarcerated, even during the course of work at prison jobs.
Employment. Certainly the most pervasive private right disqualification is the exclusion, by statute or by administrative decision, of the convicted felon from specific types of employment. Because it significantly reduces the convicted offender's ability to reenter society as a working citizen, this exclusion is thought by many either to restrict offenders to menial jobs, or to impel them to return to crime.
Certain crimes disqualify offenders from holding a job with the federal government. More importantly, government and private employers alike may generally refuse to hire any applicant who has been convicted. For example, the civil service provides that "criminal, infamous, dishonest, immoral or notoriously disgraceful" conduct may be grounds for dismissal or for refusal to hire an applicant (see 5 C.F.R. 302. 303(a)(2)).
State and municipal governments as well may bar convicted persons from official positions. Nearly half the states bar some convicted persons from certain official jobs, but only six deny public employment permanently; the typical pattern is one of discretionary judgment rather than statutory exclusion. At the other extreme lie municipalities and states that hire exoffenders as police or, more typically, as correctional or parole officers. The latter help rehabilitate other ex-offenders and at the same time demonstrate to sentenced offenders that the state is concerned about their future employment.
Other provisions deal with the licensing of convicted persons for work at certain jobs. Thus, convicted lawyers, doctors, or others automatically lose their licenses in some states, and are subject to loss of license in all. The courts have seen such statutes as nonpunitive, and upheld them without much dissent. In the nineteenth and early twentieth centuries, when only "professions" were licensed by the state, the barring of convicted persons from such employment, although onerous, was not catastrophic. Today, however, the situation has changed dramatically. In one state, for example, brokers, dry cleaners, cosmetologists, embalmers, and trainers of guide dogs for the blind must be licensed. Another state licenses (among others) minnow dealers. In all, nearly six thousand occupations are licensed in one or more states; the convicted offender may find the presumption of ineligibility against him either difficult or impossible to overcome, even though there is no apparent link between his offense and the skills needed for the job, or any character trait supposedly required by the occupation.
Access to licensed employment is usually determined by licensing boards, which are generally composed of persons engaged in the given occupation. Concerned with upholding the public image of their trade, many such board members tend to react adversely to any convicted applicant, even if the crime committed bears no relation to the trade in question. Furthermore, some of the most frequently licensed occupations are those taught in prison vocational rehabilitation programs. Thus, the released prisoner may find himself blocked from plying the very skills he was taught during incarceration, thereby frustrating both the prisoner and the correctional authorities.
Some courts have restricted the discretion of boards to deny licenses automatically on the basis of a criminal record, requiring that the board consider the circumstances of the criminal conviction and the extent of rehabilitation, the relation (if any) of the crime to the duties of the job, and the person's character at the time he applies. On the whole, however, courts have been extremely reluctant to interfere with the discretion of licensing boards, even when that discretion has thwarted rehabilitative goals both in and out of prison. In most states, therefore, ex-offenders remain barred from many licensed occupations.
Private employers, like their government counterparts, frequently simply refuse to hire exconvicts. They usually fear that the ex-criminal will recidivate; neither clear indications that he has been rehabilitated nor the fact that the crime was unrelated to the job sought can erase that fear or the taint he allegedly retains. Although federal (and some state) statutes may prohibit discrimination in hiring on the basis of such factors as sex and race, a past criminal record is not among these factors.
Punishment and procedure
A significant legal question that permeates all of these disabilities is whether they are punishment, Page 253 | Top of Article or civil sanctions. If they are considered punishment, then a number of protections, both procedural and substantive, would surround their imposition. For example, under the Eighth Amendment no punishment may be cruel and unusual; there is no explicit parallel provision for civil sanctions. Similarly, punishments cannot be imposed unless the state proves the predicate beyond a reasonable doubt, but civil sanctions may be imposed on the basis of far lesser standards of proof.
Almost uniformly, however, the courts have held that whether a specific loss or disability is punishment depends on the intent of the legislature, and courts have been eager to find non-punitive motives for such statutes. Thus, for example, forfeiture of one's goods may be imposed civilly because there courts have found a remedial purpose in the sanction. Similarly, preventive detention, which could be characterized as pre-conviction civil disability, has been upheld on the basis that it serves the regulatory purpose of crime prevention. Most recently, courts have wrestled with whether requiring convicted sex offenders to register with police upon their release from prison is punitive, thus activating the rights mentioned above. Universally, the courts have found that the legislature's purpose was not punitive, but preventive, even though many states require such registration for the offender's entire life. Indeed, public notification of the offender's history, current address, and employment has been upheld as nonpunitive on the same basic theory.
That some states impose civil disabilities in a wide-ranging manner, while others forego or limit such disabilities, suggests that the nonpunitive purposes espoused by proponents are at least suspect. But even if that conclusion is debatable, these examples suggest either the need for reevaluation of the notion of punishment, or a more nuanced exploration of the disability being imposed. Thus, one might suggest a sliding scale in which the standard of proof, or procedural rigor, might be increased as the intensity and duration of these civil disabilities increased. The Supreme Court has adopted such an approach in analogous areas, for example in civil commitment where the Court held that the standard of proof should be by clear and convincing evidence, rather than by a mere preponderance. Similarly, one might impose rules of evidence, or appointed counsel, in some instances where the disabilities are both intrusive and long-lasting.
Restoration of rights
Once a person has lost civil rights as a result of a conviction, he may never be able to regain them. Disfranchisement in many states is lifelong; there is no mechanism for restoring the right to vote. A prospective employer, public or private, may use a decades-old conviction for a minor offense as grounds for denying employment to an applicant. The stigma of conviction lasts long after a sentence has been served, and may constitute a permanent barrier to reintegration into the community. Some states limit the duration of at least some civil disabilities, usually providing for automatic restoration of certain rights at the end of imprisonment, probation, or parole. Many states take a middle ground, providing some discretionary mechanism, either judicial or administrative, for the restoration of at least some civil rights.
A substantial and growing number of states have enacted legislation providing for the "expungement" of a criminal conviction, under specific circumstances and for specific crimes. The statutes are usually vague about the scope of expungement and even less clear about its effect on those civil rights that would otherwise be lost or suspended. For example, it is uncertain whether a person whose conviction has been "expunged" may validly deny, on employment application forms or in other settings, that she has been convicted of a crime.
Similar difficulties arise with regard to specific rights that are generally lost upon conviction. In California, for example, the expungement statute provides that the defendant convicted of a misdemeanor "shall be released from all penalties and disabilities resulting from the offense or crime" (Cal. Penal Code § I 203.4a (1981 Supp.)). The California courts have interpreted this language in varying ways. Thus, expungement restores the voting franchise and releases the offender from the obligation to register with local police, but does not automatically restore either his right to possess a firearm or his right to regain professional licenses. Nor does expungement prohibit the civil service from relying on evidence of a conviction in dismissing a public employee. Similar confusion has attended efforts to provide for the restoration of other civil rights that are lost as a result of conviction.
Analysis and future of civil disabilities
Imposition of collateral civil disabilities on those convicted of crime raises perplexing problems Page 254 | Top of Article of both policy and law. The major problem encountered in analyzing civil disabilities is the existence of competing views concerning their purpose. If the primary purpose of the criminal justice system is to rehabilitate the offender, no civil disabilities should be imposed on him, at least after incarceration, since this will only jeopardize his reintegration into the community. Critics of civil disability laws and practices point out with particular anguish that it is often government itself, although allegedly seeking the rehabilitation of offenders, that refuses to hire exoffenders, erects legal barriers to their acceptance by the community, and allows private employers and others to indulge their fears about them. These critics urge complete restoration of rights immediately upon release, as well as strict prohibition against any search for information about a person's past criminal record.
At the other extreme is the view that civil disabilities are merely additional components of the offender's sentence and punishment, and are implicit in the verdict, which is surrounded by procedural and substantive protections. Even if this view were accepted, however (and note the number of instances, cited above, in which the courts have held that these disabilities are not punitive), imposing the same disabilities—in some cases lifetime ones—on all offenders regardless of the seriousness of their crimes seems to violate the cardinal principle of proportionality.
On the other hand, non-offenders surely have the right to inquire about an offender's past record in order to avoid becoming victims of his possible future crimes. Employers have a particular concern since some courts, either on an absolute basis or on the basis that the employer did not sufficiently investigate the ex-felon's character, have held liable employers who have hired ex-felons who have then committed crimes against customers. Arguably, then, potential future victims should have the right to exclude the offender from situations in which they would be particularly vulnerable, or at least the right to know about the past conviction so that they can decide whether to take a risk such as that of employing him. Thus, even if only one out of every thousand former embezzlers might embezzle again, it seems at first blush questionable to prohibit a prospective employer from learning of an applicant's past background, including his past convictions, and from acting on that information. Prohibiting such an inquiry, however, could be supported on the utilitarian grounds that the fear of recidivism is greatly exaggerated and cannot outweigh the benefits that employment would bring to ex-offenders; and that on retributivist grounds, the offender has "paid the price" of his crime and should be allowed to reenter society without continuing impediments and burdens.
Balancing the rights of the ex-offender against the rights of others is no easy task. Where the conflict concerns such potential victims as the state, and the issue is the right to vote or to serve as a juror, perhaps the balance should be weighted differently than where the potential conflict is between the right of one individual—the exoffender—and that of another individual—the potential employer or crime victim.
As indicated earlier, civil disabilities have been imposed on offenders for over two millennia. This well-established practice is unlikely to cease anytime in the foreseeable future. The good news, however, is that while, in the past fifteen years, there has been an explosion in the number of states requiring registration by exoffenders, there was a only a minimal escalation in the imposition of other consequences. Since there was otherwise a marked increase in the length and intensity of criminal punishment generally, it may be that we have reached the apogee of the movement.
Numerous reforms have been suggested for dealing with these problems. The Model Penal Code (§ 306.6) provides for automatic restoration of all civil rights to any successful probationer or parolee, as well as to all persons who have completed their incarceration and have not committed a crime for two years; yet it does allow licensing boards to deny licenses when there is a prior criminal record. The National Advisory Commission on Criminal Justice Standards and Goals recommends automatic restoration of civil rights upon completion of sentence, and would require a licensing board to show a "direct relationship between the offense committed or the characteristics of the offenders and the license or privilege being sought" before denying a license. Similar standards adopted by the American Bar Association and the National Conference of Commissioners on Uniform State Laws extend the requirement to private employers as well. The National Council on Crime and Delinquency goes further, calling for automatic restoration of rights by a court on completion of parole, probation, or incarceration, and allowing licensing boards (and possibly private employers) to inquire only whether the applicant has ever been Page 255 | Top of Article arrested for or convicted of a crime "which has not been annulled by a court."
Civil disability statutes are vague and uncertain of application, and would seemingly provide fertile grounds for legal challenges in terms of both due process and equal protection. If change is to occur, however, it seems unlikely to come from the courts. A few sporadic judicial decisions have invalidated state actions, but the imposition of civil disabilities is within the province of the legislature, and except in extreme cases it does not violate the offender's constitutional rights. Moreover, as noted above, most courts find these provisions nonpunitive in purpose, thereby granting states wide discretion as to how to deal with such disabilities.
In effecting change, legislatures will have to confront the philosophic and policy dilemmas posed by civil disabilities laws, as well as the practices of private employers and others who seek information about a person's criminal background. The predicament of former offenders is unquestionably real, but public concern about their future behavior is equally real. This is the problem that will confront the legislatures in the future.
RICHARD G. SINGER
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Hawker v. New York, 170 U.S. 189 (1898).
In re Hatch, 10 Cal. 2d 147, 73 P.2d 885 (1937).
Otsuka v. Hite, 64 Cal. 2d 596, 414 P.2d 412 (1966).
Richardson v. Ramirez, 418 U.S. 24 (1974).
Schneider v. Rusk, 377 U.S. 163 (1964).
Trop v. Dulles, 356 U.S. 86 (1958).