Citation
Civil maiming

Material Information

Title:
Civil maiming an investigation of a socially sanctioned, acceptable, and "rational" discrimination
Uncontrolled:
Investigation of a socially sanctioned, acceptable, and "rational" discrimination
Creator:
Howard, Joshua ( author )
Language:
English
Physical Description:
1 electronic file (137 pages) : ;

Subjects

Subjects / Keywords:
Civil rights -- United States ( lcsh )
Discrimination -- United States ( lcsh )
Ex-convicts -- Services for -- United States ( lcsh )
Civil rights ( fast )
Discrimination ( fast )
Ex-convicts -- Services for ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Review:
While most people know there are problems with and because of mass incarceration in the United States, many are unaware of the vast amount of legal liabilities facing felons after their sentence. For instance, many people think that felons cannot vote, but almost all of the state’s return this right after finishing a sentence (three do not); however, most people do not realize that felonies can prevent people from getting many jobs, significantly delay or prevent attaining occupational licenses, and make renting property incredibly difficult. In this thesis, I explore the legal aspects of civil disability—the legal limitations facing and restricting felons after finishing their sentences (also referred to as “collateral consequences” or “civil disabilities”) using content analysis and legal review. In the process, I look at the ways a felon could escape civil disability through sealing, expungement, pardons, and possible future methods like Supreme Court interventions—particularly the case for considering felons as a suspect class offered by Geiger. I end by arguing that the large network of civil disabilities are invidious discrimination under the models offered by Ely, Fiss, and Hellman and creates something like, but not quite, civil death for felons: civil maiming.
Thesis:
Thesis (M.S.)-University of Colorado at Denver.
Bibliography:
Includes bibliographic references
System Details:
System requirements: Adobe Reader
Statement of Responsibility:
by Joshua Howard.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
958707570 ( OCLC )
ocn958707570

Downloads

This item has the following downloads:


Full Text
CIVIL MAIMING: AN INVESTIGATION OF A SOCIALLY SANCTIONED,
ACCEPTABLE, AND RATIONAL DISCRIMINATION
by
JOSHUA HOWARD
B.A., University of Colorado Denver, 2011
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado in partial fulfillment
of the requirements for the degree of
Master of Humanities
Humanities and Social Sciences
2016


This thesis for the Master of Humanities degree by
Joshua Howard
has been approved for the
Master of Humanities & Social Sciences Program
by
Omar Swartz, Chair
Sarah Tyson
Jordan Hill
Date: April 29, 2016


Howard, Joshua (M.H., Humanities)
Civil Disability: An Investigation of a Socially Sanctioned, Acceptable, and Sensible
Discrimination
Thesis directed by Associate Professor Omar Swartz
ABSTRACT
While most people know there are problems with and because of mass
incarceration in the United States, many are unaware of the vast amount of legal
liabilities facing felons after their sentence. For instance, many people think that felons
cannot vote, but almost all of the states return this right after finishing a sentence (three
do not); however, most people do not realize that felonies can prevent people from
getting many jobs, significantly delay or prevent attaining occupational licenses, and
make renting property incredibly difficult. In this thesis, I explore the legal aspects of
civil disabilitythe legal limitations facing and restricting felons after finishing their
sentences (also referred to as collateral consequences or civil disabilities) using
content analysis and legal review. In the process, I look at the ways a felon could escape
civil disability through sealing, expungement, pardons, and possible future methods like
Supreme Court interventionsparticularly the case for considering felons as a suspect
class offered by Geiger. I end by arguing that the large network of civil disabilities are
invidious discrimination under the models offered by Ely, Fiss, and Heilman and creates
something like, but not quite, civil death for felons: civil maiming.
The form and content of this abstract are approved. I recommend its publication.
Approved: Omar Swartz
m


ACKNOWLEDGEMENTS
I would like to thank Omar Swartz for closely working with me on this project
and for reading and commenting on all of the drafts and text that did not make it into the
final. This project would not be the same without you. Thank you to Sarah Tyson and
Jordan Hill for all of your feedback and guidanceparticularly at the last moment, when
I needed it the most. I truly appreciate the help, guidance, and feedback I received from
all of you and could not have finished this thesis without it. Thank you all very much.
IV


TABLE OF CONTENTS
CHAPTER
I. FELONIES, CIVIL DISABILITIES, AND COLLATERAL CONSEQUENCES. 1
What is a Criminal Record?..........................................6
Misdemeanors, DUIs, Felonies........................................6
What are Collateral Consequences and Civil Disabilities?...........10
II. THE CIVIL DISABILITIES OF CONVICTED FELONS...........................14
Housing............................................................14
Employment.........................................................17
Federal Employment...............................................18
State Employment.................................................19
Armed Forces.....................................................19
Private Employment...............................................20
Licenses and Government Agencies.................................21
Working or Volunteering With Children............................23
Banking, Commodities, and Securities.............................24
Labor Organizations..............................................26
Participation in Federal Contracts or Programs...................26
Department of Defense Contracts..................................27
Working for State or Federally Funded Health Agencies............27
Americorp/Peacecorp/Jobcorp......................................29
Immigration........................................................30
Government Aid.....................................................31
v


Drug Offenders and Federal Government Benefits......................32
Retirement Benefits.................................................33
Military Benefits...................................................33
Holding Office, Voting, and Jury Service..............................34
Right to Hold Office................................................35
Di senfranchi sement................................................37
Jury Service........................................................38
Gun Ownership.........................................................39
Basics..............................................................39
Can a Felon Have Their Gun Rights Restored?.........................40
Sex Offender Registries...............................................43
Adopting Children or Being a Foster Parent............................44
Conclusion............................................................45
III. OVERCOMING CIVIL DISABILITIES...........................................46
Current Ways to Overcome a Felony.....................................46
Presidential Pardons................................................47
Gubernatorial Pardon................................................47
Sealing and Expungement.............................................47
A Note About Civil Rights Restoration...............................48
Future Possible Ways to Overcome Civil Disabilities: State or Local Level ....49
State-by-State Office of the Pardon Attorney...............................49
Market Incentives..........................................................50
vi


Sentencing
51
Future Possible Ways to Overcome Civil Disabilities at the Federal Level.52
Are Civil Disabilities Cruel and Unusual Punishment?..................52
Equal Protection and Suspect Status: The Ironically Named Saving Grace?
.............................................................................61
Are Felons a Suspect Class?...........................................63
Is a Felony Immutable?................................................64
Do Felons Have a History of Class-Based Discrimination?...............75
Are Felons Politically Powerless?.....................................77
Inherent Suspicion of the Classification..............................86
Felons Are a Suspect Class............................................87
The Other Option: A Call for Solidarity..................................87
The Politics of Passing...............................................88
Identity Politics and Felons..........................................89
Conclusion...............................................................90
IV. ARE CIVIL DISABILITIES WRONGFUL DISCRIMINATION?............................91
Discrimination: Is it Really Wrong to Discriminate?......................91
Wrongful Discrimination: Is Discrimination Always Wrong?..............92
Are Civil Disabilities Wrongful Discrimination?.......................96
Is It Always Wrong To Discriminate Against Felons?....................98
V. ARE CIVIL DISABILITIES A FORM OF CIVIL DEATH?.............................100
Outlawry................................................................101
vii


Corporeality of the Outlaw
103
Death and Civil Death........................................104
Civil Death, Monastery Life, and Forfeiture.......................108
Is Civil Disability a New Form of Civil Death?......................112
Conclusion Social Death, Civil Death, Civil Disability Reconsidered.116
REFERENCES........................................................121
SUPREME COURT CASES REFERENCED....................................126
viii


CHAPTERI
FELONIES, CIVIL DISABILITIES, AND COLLATERAL CONSEQUENCES
In 2016, American citizens are the inheritors of over forty years of bipartisan
political wars waged on drugs, crime, and gangs, which has created a situation in which
there are more prisoners in the U.S. per capita than are in any other country in the world.
Interestingly, these policies seem to go in hand with the current recidivism rate: 76.6% of
prisoners will recidivate within five years of release and 43.4% will do so by the end of
the first year after release (U.S. Bureau of Justice Statistics 2014, 8). If these policies
were effective at reducing crime, safeguarding citizens, or preventing incarceration, the
U.S. would not have a situation in which over three-fourths of prisoners will go back to
prison within five years after releaseand most in the first year. It seems as these
policies only help by ignoring the causes of a large portion of crime (poverty, lack of
opportunity, lack of education, and desperation) and by hindering the conditions
necessary for felons to easily acclimate back into society. These policies focus on the
misguided and questionable idea that people act merely out of rational choice and thus,
harshly criminalize behaviors such as drug dealing, pimping, racketeering, theft, etc., in
an attempt to rationally recondition people to be law-abiding citizens rather than to
address the material conditions that create the desire to commit crimes such as the
desperation someone feels when it seems like there are few or no options out of poverty.
While many people believe that prison and parole is the end of their punishment,
the men and women released from prisons with felonies on their records see the other
side of these policies because their punishment(s) continue in the form of legal
1


restrictions, loss of rights, and normative discrimination from employers and landlords
referred to as civil disability (the full set of legal disability of all the civil disabilities
facing a felon), civil disabilities (each disability or loss of right individually), or
collateral consequences (the laws that create these legal disabilities). These legal
disabilities are sometimes temporary, but many are life-long like the federal ban on
owning firearms or on a permanent case-by-case basis as in job or housing
discrimination. Civil disabilities also range from being related to the chargeas in the
bans on sex offenders working with childrento the completely irrelevant like the ban
on being a workers union officer for years after a felony conviction. These disabilities,
while just one facet of the problem of mass incarceration, are a large and often ignored
issue that needs to be considered because of their ramifications on mass incarceration and
the lives of U.S. citizens. Knowing that poverty, hunger, lack of opportunity, lack of
education, and desperation are major contributors to crime, what other than more poverty,
hunger, desperation, hopelessness, and old criminal habits and knowledge leading to
recidivism should be expected from a series of policies that drastically limit a felons
opportunities to find housing and employment or get occupational licenses? Or prevent
them from enacting their civil duties to vote or sit on juries temporarily (usually while
incarcerated or on parole) or permanently (Florida and Iowa; other states ban certain
felons from voting for life)? Or hinder drug felons from accessing government benefits
(state-by-state, but federally inspired or mandated laws)? For these and other reasons I
explain throughout the thesis, civil disability is not an apt term to describe the totality of
civil disabilities. Civil disability implies that someone is disabled, but still can function
within societythat they are just limited in some regard; however, for a large portion of
2


people who are civilly disabled, the disabilities become a nexus of wrongful
discrimination which prevent them from living a normal lifeparticularly when you look
at intersections of marginality like race discrimination plus felon discrimination. It is this
nexus of discrimination, or civil disability as a whole, which I term civil maiming
because rather than disabling people, civil disability maims a felons citizenship. Felons
have a permanently wounded citizenship and there is little recourse to escape this
wounding. Furthermore, civil maiming affects so many areas of a felons life that it can
be described as creating an underclass of people.
In this thesis, I argue that civil maiming is an invidious form of discrimination
because it is a major contributor to the problems of recidivism and mass incarceration in
the U.S. Civil maiming stands in the way of felons moving on with their lives and
escaping the conditions that inspire(d) their criminal activity. The irony being that just
like holding onto anger or resentment, holding onto the guilt of the past fosters the exact
conditions it purports to overcome. But as the U.S. is left with the aftermath of years of,
and still continuing, mass incarceration, it is imperative to work through these issues and
explore what, if anything, can be done to alter the penal system and laws to help prevent
more people from being caught up in a permanent system of wrongful discrimination and
alleviating the legal burdens on those already facing discrimination. However, before I
can make this claim fully, I need to explore civil disability to show why it is more apt to
call it civil maiming. So, I will return to this concept in Chapter Five.
As my addition to this working through the ramifications of mass incarceration, I
explore the issue of civil disability in this thesis from a legal and philosophical
perspective. Looking at the topic this way affords an opportunity see the more concrete
3


parts of the problem of civil disability because laws are written, agreed upon, mandated
by a state power, and for the most need little interpretation to determine what behavior is
and is not allowed before I explore the more abstract issues like whether or not civil
disability is wrongful discrimination or civil death. While the issues of civil disabilities
ripple far beyond the law and philosophy, discussing cultural elements or sociological
and criminal correlations is much trickier to discuss in a thesis this size. However, this
concrete approach also will help readers to better understand the penal system and how it
constitutes subjects as a felon, which in turn creates a series of roles and limitations for
the average felon to live out because the laws create many of the disabilities, the label of
felon, the criminal record, the criminal categories under which a felony could exist, etc.
In other words, by understanding the laws that create the legal category of felon, one is in
a far better position to understand what a felon is, how they function in the world, and
where their legal and material limitations are.
There are five chapters in this thesis and each chapter builds on the previous.
Because of the technical and jargon-heavy nature of the thesis, the first chapter explores
much of the terminology and legal facets of felonies and civil disability. The second
chapter explores the civil disabilities with a focus on federal laws. The third chapter looks
at the few ways someone can remove civil disability currently and suggests ways civil
disabilities could be overcome in the future. The fourth chapter explores whether or not
civil disabilities are invidious discrimination using the discussions of the previous three
chapters as a backdrop. Similarly, the last chapter looks at whether or not civil disability
is a form of civil death. While others have made some of the arguments in this thesis, I
believe that I have added four contributions to the discussion: first, I offer a more in-
4


depth exploration of what felonies and civil disabilities are than many other papers;
second, I explore the current, difficult, time-intensive, subjectively-decided, and often
expensive methods of removing civil disabilities and a few possible future methods for
removing civil disabilities, some of which I have not seen anyone else argue for in the
literature: capitalism or market incentives as a vehicle to overcome discrimination and the
call for a felon rights movement ran by felons; third, I add the concept of demeaning
individuals as wrongful discrimination to the discussion of wrongful discrimination; and
fourth, I offer the concept of civil maiming to explain when civil disabilities become
wrongful discrimination. While civil disabilities are not quite as extreme of a wrongful
discrimination as civil death (because civil disabilities do not completely kill a felons
citizenship or remove all of their rights), civil disabilities create avenues in which the
government maims a felons citizenship. The disabilities coalesce as a vast set of
limitations on ones actions, creating an underclass of maimed citizens rather than killing
the class altogether. In this thesis, I ultimately argue that this maiming happens when the
disabilities are irrelevant to the charges, as the vast majority of them currently are, and
we allow little to no escape from them.
To begin, however, I need to explain the basics around criminal records and their
ramifications in the lives of felons. To that end, this chapter sets the stage for the rest of
the masters thesis by explaining terminology and beginning the process of questioning
criminal records, felonies, civil disabilities, and collateral consequences. First, I discuss
criminal records. Then, I ask, what does it mean to have a felony, DUI, DWI, or a
misdemeanor on a criminal record? And end with a section about the subtle differences
5


between civil disability, civil disabilities, and collateral consequences, and how they
constitute the class of felon.
What is a Criminal Record?
A criminal record is a record of each time a person has been arrested, charged,
convicted, issued a warrant for arrest, or served time in jail or prison. Generally, the full
document is for police and governmental agencies only and will include infractions like
traffic tickets; however, in most states (at least some of) this information can be easily
obtained for free or for a fee from the state or a private company. Generally, this
information will only be about felonies, DUIs/DWIs, and certain misdemeanors. Also,
depending the state of conviction, more or less information may show up on background
checkssometimes, charges as well as convictions can show. While technically illegal
(U.S. Equal Employment Opportunity Commission 2012, under section V.B. 2.
Arrests), having convictions show can create a situation wherein someone could be
discriminated against for lying on an application or for being a felon when they actually
are not because they were only charged, never convicted. Meaning that there might be
other levels of discrimination that may arise because of the social or individual aspects of
civil disability.
Misdemeanors, DUIs, Felonies
Most Americans understand the basic difference between infractions,
misdemeanors and felonies: infractions are minor things like traffic tickets;
misdemeanors are generally less serious crimes and minor offenses with little to no jail or
prison time; felonies are considered more serious crimes that often have a sentence of one
or more years in prison or of death, which may or may not actually be served.
6


Sometimes, felons known as paper felons, do not serve prison time at all and are put
straight into probation. Misdemeanors and felonies are often considered the first and
second tier of criminal behavior and treason is the third and most serious. Though, for
this discussion, consider treason a felony with additional civil disabilities like a sex
offense, drug crime, or white-collar crime in an industry with regulation demanding this
like banking. However, the system is a little more complicated than that because of the
interaction of federal and state laws. For instance, in some states, possession of any
amount of marijuana, including seeds and stems or the end of a joint, is a felony (for
instance, Ariz. Rev. Stat. § 47-1101). Someone charged with a felony in Arizona for
marijuana having stems would still be considered a felon after moving to a state where
there were lax or even no laws against minor marijuana possession because this record
follows them for life from the state of origin unless sealed, pardoned, etc.
Often, misdemeanor crimes are things like shoplifting, drug possession, minor sex
crimes like public indecency, minor thefts, minor traffic offenses, small criminal
negligence, etc.; however, it should be noted that depending on the state, any, all, or
certain variants of these could be considered felonies. For instance, it is common to have
possession of minor drugs like marijuana be misdemeanor charges, but possession of
even small amounts of hard drugs like crystal meth, heroin, LSD, PCP, crack are
felonies; however, in some states marijuana is punished more severely than in other
states. Generally, there are few or no civil disabilities against people with misdemeanor
charges on their record; however, sometimes, these charges may interfere with their
ability to lease some housing, acquire jobs with in-depth background checks, or to
acquire certain professional licenses or govemment/special clearances. Also, in some
7


areas, even misdemeanor sex offenses will require someone to register for the sex
offender registry.
DUIs/DWIs are driving under the influence or driving while intoxicated. First
offenses are generally classified as misdemeanors, but are treated as more serious than
most misdemeanors. Subsequent DUIs/DWIs, however, are felonies in many states. They
seem to hold a higher stigma than most misdemeanor crimes, but for the most part entail
similarly small civil disabilities to misdemeanorsthe major difference being that
DUIs/DWIs almost always sentence a person to surrender their drivers license for a
period of time (this is a common civil disability for felons as well because of Department
of Transportation funding requirementsdiscussed in chapter two). They have a bit of a
stigma in some areas and for some people because of the work of victim advocacy groups
like MADD, the legal issues involved, existential experiences like knowing a few
alcoholics or someone killed in a drunk driving accident, and having a DUI/DWI gives
someone a criminal record; however, it is usually minimal in comparison to what a felon
experiences.
Felonies are generally things like assault, breaking and entering, child abuse, drug
dealing, drug manufacture, grand theft, kidnapping, murder, pedophilia, pimping,
possession of drugs (amounts and what vary by state), racketeering, rape, treason1, etc.
As stated above, they for the most part are crimes with a sentence of one or more years in
prison or a formal execution, but some felons serve little or no time (paper felons).
There is a much higher societal stigma toward felons than other lawbreakers and they
1 While treason is slightly worse than a felony legally, for this project just assume
treason is a felony plus extra disabilities that only apply to the treasonous in some cases.
8


almost always experience the few civil disabilities already discussed, plus quite a few
more (covered in the next chapter). Even though there is a wide variance of people with
felonies and charges that are considered felonies, they are often lumped into one
homogenous category of bad people in our societal imagination. This may be because
the U.S has taken from British legal traditions, which has a fascinating history. While the
OED states that felons ultimate etymology is uncertain (OED Online 2015, s.v.
felon), the words felon and felony seem to come from the Latin fel2 meaning, the
gallbladder, gall, bile; poison, venom; bitternessparticularly considering the link
within English and popular culture to associate felons with being poison, wicked, evil,
bitter, or otherwise awful people (Cassells 1987, s.v. /e/). This is also evident in the
closeness of meaning of bitterness and venom with felons, which can also be seen in the
meanings of its many derivations across the Romance languages: wicked, angry,
brave, melancholy, sad (Italianfellone), intensely painful (OED Online 2015, s.v.
felon). It is believed by some that fell (in the biblical/wicked sense) originally was
the subject case and felon the object case, but the evidence shows interchangeable use
{OED Online 2015, s.v. felon). However, this is not exactly the case in our time.
Currently, in the U.S., the vast majority of felons are drug offenders. In U.S. prisons in
early 2016, there are 86,080 drug offenders (46.5%), with the next highest categories
being weapons, explosives, arson at 31,292 (16.9%) and immigration at 17,354
(9.4%) (Federal Bureau of Prisons 2015).
2 One might compare this with felix (happiness, lucky, fruitful, successful),
felicitas (happiness, good fortune, success, goddess of...), andfeles (cat, a thief).
9


In short, the differences between differing types of criminal records affect the
amount of civil disability someone experiences greatly. This is why this thesis is focused
on the civil disabilities of convicted felons and not other criminal levels; however,
depending on what someones misdemeanor record is for, what state they are in, how
much a DUI/DWI matters there, etc. will affect the civil disabilities/collateral
consequences experienced by any individual.
What are Collateral Consequences and Civil Disabilities?
Collateral consequences and civil disabilities are terms that are often used
interchangeably to describe additional penalties and restrictions that follow a person after
a criminal conviction for a period of time. This time period also varies depending on
crime and state, e.g., in Florida, felons cannot vote unless pardoned; however, in
Colorado, felons can vote after completion of sentence. There are many of them and
some vary by state (see the next chapter discussion of civil disabilities). Interestingly,
collateral consequences and civil disabilities are not exactly the same thing, but refer to
two sides of the same vague and unclear legal apparatus: the penalty and the condition of
living with it. Blacks Law Dictionary says that collateral consequences are a penalty for
committing a crime, in addition to the penalties included in the criminal sentence. An
example is the loss of a professional license (9th ed., s.v. collateral consequence).
In other words, collateral consequences is the legal term for the penalties a felon faces
after (and sometimes while) completing their sentence. Civil disability, on the other hand,
is one of ways in which someone can be legally disabled: Disability. (16c) 1. The
inability to perform some function; esp., the inability of one person to alter a given
relation with another person. ... 3. Incapacity in the eyes of the law (most of a minor's
10


disabilities are removed when he or she turns 18) (BlacksLaw Dictionary 9th ed., s.v.
Disability). This means that rather than being the hindrances/penalties themselves,
disability is the state of being unable to do things. Continuing this, Blacks reads, Civil
disability. (18c) The condition of a person who has had a legal right or privilege revoked
as a result of a criminal conviction, as when a person's driver's license is revoked after a
DWI conviction. Cf. civil death (2) under DEATH (9th ed., s.v. Disability). This says
something interesting: collateral consequences are penalties that are enacted when
someone is convicted, but are not directly part of the sentence; disabilities are an
inability to perform some function and an incapacity in the eyes of the law; and civil
disability, therefore, is a legal condition which is a subclass of disability because it is
when someone is unable to do certain things because they have an incapacity in the eyes
of the law due to a penalty of law, i.e., collateral consequences. It should also be noted
that if speaking of all of the civil disabilities as a whole, it is generally written civil
disability (to live as a felon is to experience civil disability), but if speaking of the
disabilities as individual things, civil disabilities is used (felons experience many civil
disabilities).
In summary, sometimes people use civil disabilities and collateral consequences
as if they were synonymous; however, a deeper look at the definitions shows that there is
a subtle difference. Collateral consequences are additional (often lifelong) punishments
for committing a crime that accompany the sentence, but are not explicitly detailed within
the sentence. This is because they are legal mechanisms that are enacted when someone
has been convicted and has become/been declared a convicted felon. These legal
mechanisms create a condition of disability because they are an inability to do something.
11


Hence why a collateral consequence is a penalty, a disability is the inability to
perform some functions, and a civil disability is having a legal right or privilege
revoked as a result of a criminal conviction. If thought of together, a bigger picture is
created: for a felon, the punishment of the collateral consequences/civil disability is both
the direct extra punishments themselves and the lifelong new position in life (being
civilly disabled) that arises from being subjected to the conditions of having many
collateral consequences. Like a judge declaring someone man and wife, creating a
marriage with their very words, a felon is subject to these disabilities as a result of being
performatively declared a felon. It is the judgment of felon that makes them subject to the
surrender of the following rights and privileges that most American citizens take for
granted. By being subjected to the civil disabilities of convicted felons, felons have many
of their freedoms taken away. In this regard, the definition of civil disability points one in
the right direction: civil death (the full loss of rights). This raises the question, are civil
disabilities the same thing as civil death? But this is a question I cannot adequately
address because I need to say more about civil disabilities, their ramifications in the
world, and discrimination before I can speak on their deleterious effects or lack thereof (I
return to it in the last chapter of this thesis).
For now, I turn to a detailed discussion of the civil disabilities of convicted felons
in the next chapter. This discussion covers federal and state disabilities as well as
discriminations that are possible because there are little to no legal oversights against
discriminating against felons. This prepares me for the discussions in chapters three, four,
and five about ways out of having a felony charge, whether or not felon discrimination is
wrongful discrimination, and whether or not civil disability is synonymous with civil
12


death.
13


CHAPTER II
THE CIVIL DISABILITIES OF CONVICTED FELONS3
Now that I have explained a bit about criminal records and what civil disabilities
are in the abstract, I can discuss what they are in the law and in practice. Most of these
are laws, but some are direct ramifications of laws or lack thereof. The civil disabilities
covered below are housing, employment, participation in federal contracts or programs,
immigration, government aid (mostly just special disabilities for drug offenders), civic
duties (voting, holding office, jury service), gun ownership, sex offender registry, and
adopting children. Disabilities can be lifelong or temporary, crime specific or general:
time frame and severity vary state-by-state.
Housing
Felons often face housing discrimination in the form of HUD housing bans and
discrimination from landlords because there is no ban on discriminating against them
under Equal Housing law and they are seen as undesirable tenants. Federal public
housing law, with the exception of being convicted of manufacturing methamphetamines
in public housing [42 U.S.C. § 1437n(f)] and being a registered sex offender for life (42
U.S.C. § 13663), leaves all other felonies completely within the discretion of the public
housing authority, its agents, or other landlords. The aforementioned may evict anyone
who currently is considered involved in drug or violent crime, ban anyone who
3 This section owes a great debt to The Civil Disabilities of Convicted Felons and
ABA Collateral Consequences map, a website that has most of the state-by-state
disabilities (http://www.abacollateralconsequences.org/). I started with the original
sources, fact-checked, updated, and added to them.
14


previously has engaged in a drug or violent crime(s), or either to any party that poses a
risk to other tenants or anyone employed or contracted to work on the property [24 C.F.R.
5(I)(845)]. Similarly, 42 U.S.C. 8 § 1437f(d)(l)(B)(iii) states that tenants of federally
funded housing can be evicted if they, a member of their household, or a guest commits a
criminal act that is seen as threatening health, safety, or rights to share the property or
commits a drug crime. In fact, there are many sad cases of innocent people being evicted
for crimes committed by other peopleespecially because of the one-strike policies
some housing authorities have for any criminal activity. For instance, Caroline Castle
writes of one in her 2003 paper,
Gloria White lives in a public housing complex... While ... away from her
apartment... Ms. Whites ex-boyfriend, being chased by the police, broke into
Ms. Whites apartment by climbing in through a bedroom window. The police ...
had the housing authority manager unlock the door to the apartment so they could
apprehend the ex-boyfriend, who was found to be in possession of cocaine. The
ex-boyfriend was not on the apartment lease. He did not live in the apartment. He
was not invited into the apartment. He was no longer a regular guest. He was the
only person in the apartment at the time of his arrest, and the police saw him
break into the apartment through a window. Yet, Ms. White received a notice
from the housing authority shortly after the break-in stating that the terms of her
lease had been violated and that the lease would be terminated. (Castle 2003,
1435)
While it might sound far-fetched, these policies can and do affect people who are not
even involved in crimes, but happen to know someone who commits or is only just
arrested for a criminal action. Castle also mentions a mother whose daughter was arrested
with cocaine a few blocks away, a disabled elderly man whose caretaker had cocaine in
the apartment, and a grandmother whose grandson had marijuana in the parking lot who
were also evicted from public housing (Castle 2003, 1435). In fact, in Chicago in 2010,
eighty-six percent of the people evicted because of the one-strike policy there were not on
the lease (Peterson 2013, 165). And the Supreme Court upheld the ability for landlords
15


and public housing authorities to have one-strike policies in 2002 [Peterson 2013, 165;
Department of Housing and Urban Development v. Rucker (2002)]. Further, 42 U.S.C. §
1437d(k) covers an expedited eviction process for these crime related evictions. After
this, according to 42 U.S.C. § 1437f(d)(l)(A)(iii), those evicted for this reason are banned
from federal housing benefits for three years. If convicted three times, the federal housing
aid ban becomes mandatory and permanent. These evictions can be removed, however, if
the person enters rehab, cannot enter rehab because it is unavailable, is already
rehabilitated, or serves as a witness for the federal government to prosecute other
offenders (U.S. Office of the Pardon Attorney 1996, 11); however, this too is at the
discretion of the local housing authorities and the landlords. But that whole issue aside,
the discrimination against drug felons in public housing themselves is so prevalent and
invasive that housing providers frequently err on the side of denying assistance to
individuals who have had even minimal contact with the criminal justice system (Tran-
Leung 2015, 4). There is a Shriver Center report on this issue arguing that in order for
federally assisted housing to be fair and balanced, it must have four changes: (1) the
amount of time felonies are relevant (lookback period) must be scrutinized because
currently it is at the discretion of the landlords and public housing authorities; (2) no
longer use arrest records as proof of criminal activity because arrests are not equivalent to
guilt; (3) remove or at least scrutinize overly broad categories of criminal activity for
permanent bans; and (4) offer an opportunity for felons to explain mitigating
circumstances and their life changes since their conviction to show rehabilitation or little
reason to commit further offenses (Tran-Leung 2015, 35-37).
In a similar vein, many cities across the U.S. have taken on Crime Free Housing
16


policies, which are partnerships between landlords and the police. They suggest to
landlords to carefully screen tenants, to report things to the police, to evict peopleeven
if most, or all, of the evicted are the victims of certain crimes (e.g., domestic violence),
etc. Even without these policies, most real estate management companies will not rent to
felons for a variety of reasons usually relating to liability. And while this is a form of
discrimination, because felons are not considered a suspect or quasi-suspect class, they
are not considered safeguarded from this kind of discrimination under Fair Housing and
Equal Opportunity laws. However, private owners will occasionally rent to felons. It is
much easier to rent from them because a felon can bring it up if they do, or when they do,
after they have gotten to know the potential tenant a bit, and it is ultimately up to the
landlord and not a predetermined policy. But there are plenty of private owners that also
will not rent to felons eitherit is at their discretion and generally thought of as risky.
Employment
There are many types of employment discrimination facing felons. According to
the Equal Employment Opportunity Commission,
92% of employers stated that they subjected all or some of their job candidates to
criminal background checks. Employers have reported that their use of criminal
history information is related to ongoing efforts to combat theft and fraud, as well
as heightened concerns about workplace violence and potential liability for
negligent hiring. Employers also cite federal laws as well as state and local laws
as reasons for using criminal background checks. (2012)
In other words, many employers use criminal records to screen applicants for a variety of
purposes. And generally, this is not considered wrongful discrimination. Criminal records
are not covered under Title VII of the Civil Rights Act of 1964 (amended); however, if a
felon can show that an anti-felon hiring policy or practice either shows disparate
treatment, then, this is ground for a wrongful discrimination claim. Currently, there are
17


two ways in which discrimination can be considered wrongful discrimination, (1) the
discriminatory act discriminates against people in classes protected under Title VII (e.g.,
a white felon and a black felon apply for the same job, but the black felon is denied
because of his record, whereas the white felon is given a job, showing racial disparity in
their hiring practices around felons) or (2) the policy creates a disparate impact on a Title
VH-protected group (e.g., a policy creates a situation in which no racial minorities are a
part of the company because they have all been screened out due to high numbers of the
minority in the area having criminal records); however, for the claim to go through, there
has to be a semblance of negligence. In other words, a policy is only considered wrongful
if the employer fails to demonstrate that the ... practice is job related for the position in
question and consistent with business necessity (Equal Employment Opportunity
Commission 2012). But this policy, like so many others, leaves a large loophole:
anything that can be deemed relevant to the job can be an acceptable discrimination. And
since felons are considered already suspect, it is not a far stretch to make many highly
discriminatory policies seem relevant to the job. This is why many large companies with
basic entry-level jobs for the most part do not hire felons. In this section, I delve more
deeply into this and look at federal employment discrimination, the armed forces ban,
federal regulations on private employment, labor organization bans, regulatory agencies,
etc.
Federal Employment
Federal employment of felons is at the discretion of hiring agency with the
exception of some specific crimes (like treason, starting a riot, encouraging overthrow of
the government, etc.), which are sometimes permanently banned from federal
18


employment, but generally banned for a period of five years. Other than these exceptions,
a felony conviction does not disqualify a person from federal employment, but is a
factor in determining suitability for it, according to the Office of Personnel Management
(U.S. Office of the Pardon Attorney 1996, 7). There are, however, certain federal jobs for
which a felon is permanently banned, for example service on the National Indian
Gaming Commission [25 U.S.C. § 2704(b)(5)(A)] (U.S. Office of the Pardon Attorney
2006, 3).
State Employment
Different states have different laws about who can and cannot work for the state.
In my research, I was unable to find any state that straightforwardly denied all felons the
right to work for it; however, this does not mean that it does not happen. Most states
allow employment of felons to be discretionary, but some will only allow felon
discrimination if the felons charge directly relates to the job, for example, Kentucky (Ky.
Rev. Stat. § 335B.020), Louisiana (La. Rev. Stat. § 37:2950), and Minnesota (Minn. Stat.
§ 364.03) (Legal Action Center, 2).
Armed Forces
There are few felons in the armed forces because accepting felons is against
federal law. 10 U.S.C § 504 (a) says that anyone who is insane, a deserter, or convicted of
a felony cannot enlist, but the Secretary concerned may authorize exceptions, in
meritorious cases, for the enlistment of deserters and persons convicted of felonies.
Sometimes, felons can join the military, but only if they are considered meritorious or
more honestly, when the military really needs people like during the Iraq war.
19


Private Employment
There is a general belief in our culture that felons are dangerous and
untrustworthy. Many authors have supported this idea, suggesting that for someone
hiring, felons appear to have less inherent trustworthiness and background checks offer a
simple, seemingly reliable indicator of higher quality employees. Bushway, in his
dissertation, argues this point and suggests that companies who do not or cannot
background check will most likely take one of two poor strategies that lead to
exploitation or discrimination: (1) hire a large pool of people at lower wages, expecting
higher turn-over and lower productivity or (2) create potentially racist standards in order
to screen out felons because if a disproportionate amount of felons are black or Latino,
discrimination against them would create lower odds of hiring a felon (1996, 100-117).
Paradoxically, Bushway argues, background checks help non-felon blacks and Latinos
avoid discrimination because they are less likely to be denied employment and more
likely to receive a higher salary and better quality jobs (1996, 117). However, there is a
fundamental flaw in his argument: if blacks and Latinos are already considered to be
correlated to crime, then, all black or Latinos are potential criminals waiting to be caught;
therefore, they are all potentially suspect. This creates a situation in which they are less
likely to be hired at all because they always carry the stigma of being a potential criminal.
In fact, a black man without a felony is slightly less likely to get a callback than a white
male felon (14% v. 17%) (Pager 2007, 91). On this point, Pager writes,
despite the fact that the white applicant revealed evidence of a felony drug
conviction, and despite the fact that he reported having only recently returned
from a year and a half in prison, employers seemed to view this applicant as no
more risky than a young black man with no history of criminal involvement. ...
we are confronted with a troubling reality: being black in America today is just
about the same as having a felony conviction in terms of ones chances of finding
20


a job. (2007, 91)
In fact, the troubling reality is that the chances seem to be slightly lower for black men.
And when one adds a felony on top of that, it makes the situation far direr: a black man
with a felony has a 5% chance of getting a callback (Pager 2007, 91). Unfortunately, I
lack the space to continue the race question further here, but it is food for thought: how
much of the discrimination that happens because of criminal records affects people
without criminal records? What does this label of criminal or potential criminal do to a
persons identity? How much of the discrimination against felons is in peoples thoughts
and behaviors toward felons rather than in the behaviors and thoughts of felons?
Licenses and Government Agencies
Conviction of a felony is thought of as blight on a persons character. Someone
with a felony charge needs to be more carefully considered than everyone else. As part of
probation or other supervised situation, the sentencing court can restrict the defendants
or defendants occupations if a reasonably direct relationship exists between the ...
occupation and the offense, and ... there is reason to believe ... the defendant will
continue to engage in unlawful conduct similar to the(ir) convict(ion). U.S.S.G.
§5F1.5(a) [this is also covered in 18 U.S.C. §§ 3563(b)(6) and 3583(d)] (U.S. Office of
the Pardon Attorney 1996, 8). But there are certain federal licenses that are automatically
lost when convicted of a felony. The Civil Disabilities of Convicted Felons text notes a
few:
Customs broker's license (19 U.S.C. § 1641(d)(1)(B)); export license (50 U.S.C.
App. § 2410(h)(1)); license to export defense articles and services (22 U.S.C. §
2778(g)(3)(A), (B)); merchant mariner's document, license, or certificate of
registry (46 U.S.C. §§ 7101, 7109, 7302, 7503)); locomotive engineer's license
(45 U.S.C. § 43 l(i)(D)(iii)); licenses held by persons convicted of drug offenses
(21 U.S.C. § 862(d); U.S.S.G. §5F1.6, discussed in section D, infria). (U.S. Office
21


of the Pardon Attorney 1996, 8)
And the 2006 supplemental update adds a few more:
Grain inspectors license (7 U.S.C. § 85); license to import, manufacture, or deal
in explosives or permit to use explosives (18 U.S.C. § 843(d)); ... commercial
motor vehicle operators license (49 U.S.C. § 31310); 49 U.S.C. §§ 44709(b)(2),
44710(b), and 14 C.F.R. § 61.15 (certificate, rating, or authorization of pilot,
flight instructor, or ground instructor) (see also Zukas v. Hinston, 124 F.3d 1407
(11th Cir. 1997) (revocation of commercial pilots certificate as a result of a
federal drug conviction)). (U.S. Office of the Pardon Attorney 2006, 4-5)
Therefore, for many felons, many occupational licenses are out of the question, at least
for a few years as many of the bans are for two to ten years; however, some are for life
and the remainder of the bans or disabilities are at the discretion of a state or federal
board or members of a state or federal regulatory agency. This form of limitation creates
a situation in which upward mobility can be extremely difficultoften after a felon or an
agency has put money, time, and effort into occupational training. Ben Geiger, who I
discuss at length in chapter three, writes about a particularly ironic case,
New York state, which has one of the strongest statutory commitments to
rehabilitation, faced one of the great ironies of occupational licensing restrictions
when The New York Times reported the story of a successful graduate from a
prison vocational training program in barbering who could not get a license due to
restrictions imposed by the state licensing board. This case illustrates how even
state governments with firm commitments to rehabilitation badly mismanage the
clash of competing policy interests. (2006, 1202)
Most government regulatory and licensing agencies use a felony conviction as part of
their review process for licenses and registrations. In some circumstances, people with
felonies and previous infractions (and who report it) are the only people whose characters
are considered at all. And sometimes, felons are able to slip through the cracks, passing
by lying on the forms because in some places, the only people that have their
backgrounds checked are people who admit to having a felony. How is that in the interest
22


and safety of the people of the state? What if non-felons pose a danger to the citizens as
well? This happens because, as the Civil Disabilities of Convicted Felons (1996) text
notes,
a felony conviction is a relevant consideration when an agency reviews an
application for a license. Although not an absolute bar to licensure, agencies
closely examine convictions related to the license being given, and other
convictions as a sign of the licensee's character. (U.S. Office of the Pardon
Attorney 1996, 8)
Sometimes, these are relevant concerns like when the Attorney General suggests
considering criminal charges for drug manufacturing or dealing when deciding if
someone can register to be legally involved in manufacture, distribution, or research of
drugs (21 U.S.C. § 823) (U.S. Office of the Pardon Attorney 1996, 8). And sometimes,
they are rather irrelevant or slippery slope concerns like 5 F.C.C.R. 3252, which expands
the scope for the Federal Communications Commission by suggesting that all felony
convictions be considered part of the exploration of an applicants character because
having committed a felony demonstrates a willingness to violate laws and thus, an
applicant may not follow the F.C.C.s rules either (U.S. Office of the Pardon Attorney
1996, 8).
Working or Volunteering With Children
In most states, a person has to have a clean background to work or volunteer
around kids, particularly in relation to sex offenses, violence, domestic violence, and
child abuse. People with those convictions are banned or removed from working or
volunteering with kids in most states, but it is not so clear with other criminal
convictions. The federal guidelines are lax, but recommend background checks. 42
U.S.C. § 5119a(a)(l) says that states may require background checks for anyone working
23


with children, the elderly, or disabled people (U.S. Department of Justice 1998, 7-8). But
this varies by state. Some states make hiring or firing a felon discretionary [e.g., Alabama
(Ala. Admin. Code r. 290-3-2-.34)]; some states ban the above plus a few others like drug
and fraud offenses forever [e.g., Illinois (89 111. Adm. Code 385)]; and some make bans
on felonies other than sex offenses, violence, child abuse, or domestic violence a
temporary ban [e.g., Florida has a three year ban (Fla. Stat. § 435.07)].
Banking, Commodities, and Securities
There are several federal laws about felons working in banking, commodities, and
securities. For the most part, they are statutes preventing felons with crimes in banking or
money like money laundering, (a) breach(es) of trust, dishonesty, mail fraud, gambling,
etc. from working in banks. If convicted of a crime related to dishonesty, violations of
trust, or money laundering, a person cannot work in, own, be a director or officer of, own
enough stock to be a controlling stockholder in, or participate in the affairs of a FDIC
institution (12 U.S.C. § 1829) (U.S. Office of the Pardon Attorney, 1996, 8-9). The FDIC
can waive this ten years after conviction with some offenses (12 U.S.C. § 1829) (U.S.
Office of the Pardon Attorney 1996, 8-9).
According to 12 U.S.C. § 1818(g)(1)(c), the Comptroller of the Currency is an
independent branch of the U.S. Treasury focused on regulating, chartering, and
supervising banks in the U.S. (including foreign national banks on U.S. territory). The
Comptroller can remove people from offices of or from having anything to do with the
operations of an FDIC institution if they have been convicted of a crime about
dishonesty, breach of trust, or money laundering and if continued service or
participation by such party may pose a threat to the interests of the depository institution's
24


depositors or may threaten to impair public confidence in the depository institution (U.S.
Office of the Pardon Attorney 1996, 9). Also, 7 U.S.C. §§ 12a(2)(D), (3)(D) states that
the Commodity Futures Trading Commission can deny, suspend, revoke, place
restrictions on, or offer conditional registry to applicants for futures commission
merchant, introducing broker, commodity trading advisor, commodity pool operator, or
flood broker if they have been convicted of a felony in the last ten years relating to
commodities futures trading or of an enumerated offense, including such crimes as
embezzlement, mail fraud, false statements, theft, bribery, gambling, and federal tax
offenses (U.S. Office of the Pardon Attorney 1996, 9). But they can also conditionally or
not at all register someone convicted of a felony or an enumerated offence over ten
years old (7 U.S.C. § 12a(3)(D)); someone convicted of a misdemeanor related to
commodities trading (7 U.S.C. § 12a(3)(E); or someone convicted in state, military, or
foreign court of conduct that would be a felony under federal law (7 U.S.C. § 12a(3)(H))
(U.S. Office of the Pardon Attorney 1996, 9). Similarly, 15 U.S.C. §§ 80b-3(e)(2) and
78o(b)(4)(B), lay out that
the Securities and Exchange Commission may censure, place limitations on the
functions or operations of, suspend, or revoke the registration of any investment
adviser if he or she was convicted within the previous 10 years (or within 10 years
of filing an application for registration) of certain enumerated felonies or
misdemeanors, including such offenses as securities violations, theft, forgery,
counterfeiting, embezzlement, peijury, bribery, and mail fraud. (U.S. Office of the
Pardon Attorney 1996, 9)
In other words, for the most part, banking and securities civil disabilities often are
rationally related to the crimes committed; however, because it can be discretionary and
about any felonies, there are other felons who could experience discrimination as well.
25


Labor Organizations
Though the court can set a smaller, only three year ban, most felons are banned
for 13 years (after conviction or end of prison time, whichever is later) from serving in a
labor organization or from working on or with employee benefits plans (29 U.S.C. §§
504, 1111). This ban comes into play if they have been convicted of certain offenses ...
(including) robbery, bribery, extortion, embezzlement, fraud, drug violations, murder,
assault with intent to kill, rape, and certain offenses relating to a labor organization or
employee benefit plan (U.S. Office of the Pardon Attorney 1996, 9). In other words,
almost everything a person would go to prison for. But this ban can be lifted in two ways:
either by one of several federal courts or by the United States Parole Commission. It
depends on if the person has been pardoned or not: The disability may be removed
sooner if the individual's citizenship rights, having been revoked as a result of such
conviction, have been fully restored (U.S. Office of the Pardon Attorney 1996, 9-10).
According to 29 U.S.C. §§ 504, 1111, disabilities for federal offenses after November 1,
1987 can be removed by the sentencing court and state felonies can be removed by the
United States District Court serving the area in which the felony was committedas long
as this is still in accordance with the U.S.S.G. (U.S. Office of the Pardon Attorney 1996,
9-10). In a similar way, the disability for offenses committed before November 1, 1987
may be removed by the United States Parole Commission (U.S. Office of the Pardon
Attorney 1996, 9-10).
Participation in Federal Contracts or Programs
If convicted of felonies related to specific federally funded contracts or health
agencies, people can be banned from working under funding from the government.
26


Though, other charges or collateral consequences related to government funding (e.g.,
being evicted from HUD housing for a drug charge or being arrested for childcare
funding fraud) can also ban someone for a set of years. However, those convicted of any
felonies may have issues being accepted into a program like Americorps as well.
Department of Defense Contracts
10 U.S.C. § 2408 bans people convicted of fraud or any felony relating to a
Department of Defense (DOD) contract from working on projects funded by DOD
contracts. They can no longer work in management or supervise anyone, serve on a board
of directors, or consult for any company that is contractor or subcontractor for the DOD.
The Secretary of Defense sets the period (which can be waived in the interests of
national security), but it is usually five years (U.S. Office of the Pardon Attorney 1996,
9-10).
Working for State or Federally Funded Health Agencies
42 U.S.C. §1320a-7(a) states that people convicted of program-related crimes or
who have convictions relating to patient abuse, a felony related to health care fraud, or a
felony related to trafficking a controlled substance (unlawful manufacture, distribution,
prescription, or dispensing of a controlled substance) are mandatorily excluded from
working in Medicare and State health care programs. 42 U.S.C. §1320a-7(b) adds that the
Secretary of Health and Human Services can exclude people for many reasons: people
excluded from other government healthcare programs; those with revoked or suspended
licenses (to practice healthcare); individuals or agencies that the Secretary determines
are excessively charging, offering unnecessary services, or failing to offer medically
necessary services; fraud, kickbacks, etc. as determined by the Secretary; entities
27


controlled by a sanctioned person (e.g., a mandatory excluded people is the owner of a
healthcare company); failure to disclose required information or information about
contractors and suppliers; failing to provide payment information; being convicted of
defrauding Medicare or another government funded agency, of obstructing an
investigation or audit, or misdemeanor distribution of a controlled substance (as above,
but misdemeanor level); and a few other issues that are irrelevant to our discussion here.
Similarly, mandatory and permissive exclusions for parts of the generic drug
industry are spelled out in 21 U.S.C. §335a. The Secretary of Health must ban anyone
convicted of a federal felony involving the development or approval of any abbreviated
drug application and can, at their discretion, ban individuals convicted of misdemeanors
relating to drug applications or aiding or abetting a felony related to drug applications
from working in the generic drug industry. It is the same with anyone convicted of a
felony which involves bribery, payment of illegal gratuities, fraud, perjury, false
statement, racketeering, blackmail, extortion, falsification or destruction of records, or
interference with, obstruction of an investigation into, or prosecution of, any criminal
offense or aiding or abetting or conspiring to commit one of these felonies whose
conduct appears to show that they might violate the requirements of federal drug
restrictions (21 U.S.C. §335a(b)(2)(B)(ii) (U.S. Office of the Pardon Attorney 1996, 9-
10). Similarly with a felony related to importation of food into the United States. The ban
is for 1-10 years, depending on the reason, and only permanent if another felony
conviction happens within the next ten years (U.S. Office of the Pardon Attorney 1996,
9-10).
28


Americorp/Peacecorp/Jobcorp
In some circumstances, felons can join AmeriCorps, Peace Corps, and Job Corps.
For the most part, AmeriCorps and Peace Corps ban sex and violent offenders, people
who are clearly mentally ill or who seem to have problematic behavior, and people
currently on parole; however, others will at least be considered. Job Corps uses criminal
records as one aspect of a screening process. Though, each of the programs has their own
additional guidelines that fit in with their unique mission.
PeaceCorps is open to certain felons, but can deny a person for a failed
background check (Peace Corps 2015, under Background Investigation). AmeriCorps
has stricter constraints: be a law-abiding citizen with: no sex offense convictions, no
violent felony convictions, no non-violent felony convictions within the past 10 years, no
pending felony charges, and not currently on parole or probation (The Servant Center
2015). However, this is just to get into the AmeriCorps system: one is not an AmeriCorps
member until they are hired by a partner organization who will have their own hiring
criteriasome of which will make felons ineligible in certain states or organizations.
This partner organization is a non-profit who has been awarded a grant from AmeriCorps
to hire someone to take on some work the non-profit. While felons can join AmeriCorps,
their options are limited to the discretion of the individual hiring managers.
Job Corps has more nuanced rules about applicants and criminal records, probably
because of the population they serve is much more likely to have a criminal record.
According to Appendix 103 (Guidelines for Reviewing Applicant Files), which has a
section specifically on criminal records or current cases against an applicant in the Job
Corps Policy and Requirements Handbook,
29


applicants cannot be denied enrollment in Job Corps solely based on contact with
the criminal justice system. There is not a specific list of criminal offenses that
automatically determines that an applicant is unsuitable for enrollment in Job
Corps, nor is there a specific criminal offense or number of convictions that
automatically disqualifies an applicant from Job Corps. ... Applicant criminal
history review is meant to determine whether the applicant will exhibit behavior
that is incompatible with the maintenance of sound discipline in the Job Corps.
(U.S. Department of Labor 2015, Appendix 103, 3)
But the handbook also notes that, where possible, Job Corps will screen applicants for
behavioral problems and criminal history that would exclude them from participation in
the Job Corps program (U.S. Department of Labor 2015, Exhibit 1-8, 2). From this, it
seems as if there are certain offenses that are always thought to ban someone from Job
Corps after all.
In all of these organizations, like much of hiring practices in the U.S., whether or
not a felon will be accepted will be contingent on a series of rules laid out by a group of
upper-level managers or politicians, and must applied by the lower level people doing the
hiring. In other words, for the most part, hiring decisions beyond the scope of the few
rules about it above are up to the discretion of the hiring managers at the government or
private organizations that hire or accept applicants.
Immigration
For the most part, if an alienlegal or illegalis convicted of a felony, the alien
is deported. The U.S. Office of the Pardon Attorney list quite a few crimes that could get
an alien deported: crimes involving moral turpitude (unless only one crime punishable by
under a year and a sentence of less than six months was handed down); multiple offenses
whose sentence combine to over five years; drug violations [8 U.S.C. §§ 1182(a)(2)(A),
(B), (C) respectively]; if the alien were excludable at time of entry [8 U. S.C. § 1251
(a)(1)(A)]; two or more crimes of moral turpitude not arising out of a single scheme; an
30


aggravated felony, e.g., murder, drug or gun trafficking, money laundering, or violent
crime punishable by over five years in prison [8 U.S.C. § 1101(a)(43)]; some firearm
offenses; treason, terrorism, or espionage [8 U.S.C. § 1251(a)(2)]; and some immigration
related offenses (U.S. Office of the Pardon Attorney 1996, 12).
Having good moral character is a key requirement of naturalization. A person
will not be qualified to naturalize because of good moral character if they have spent
over 180 days confined or been convicted of a crime involving moral turpitude (except
those punishable for under a year with less than a six month sentence imposed), two or
more convictions with a combined sentence of over five years, a drug offense other than
possession of small amounts of marijuana (though, depending upon the state of
conviction, for instance Arizona, this could be a felony and therefore, grounds for
deportation), two or more gambling offenses during their grace period, or have ever been
convicted of an aggravated felony [8 U.S.C. §§ 1101(f)(3), (5), (7), (8); 1427(a)] (U.S.
Office of the Pardon Attorney 1996, 11-12).
Government Aid
Certain felons are denied access to government aid because of the crimes they
were convicted of or the property those crimes took place on. Similarly, some convictions
are considered felonies in some states and not in others, which may or not trigger
government aid bans on a federal or state level depending on where the conviction takes
place and where the funding for government aid comes from. And of course, many
programs that distribute government benefits, even those run by state and local
governments or other forms of non-profit agencies, function off of federal funds or are
run by the federal government; therefore, many of these programs fall under or are
31


influenced by federal laws. Because of this, some federal benefits can be lost or altered
after being convicted of a crime because of a federal law; however, this is not to say that
states do not discriminate or cannot override the discriminatory federal policies. Some of
these, I have discussed above, like housing benefits, but the majority of how federal laws
affect felons seeking other types of federal aid or retirement pay is covered below.
Though, it should be noted that most of the government aid discrimination happens to
drug offenders.
Drug Offenders and Federal Government Benefits
To anyone who is familiar with the issue of civil disability, the special disabilities
for drug felons are not shocking: in fact, the vast majority of the topics in this section on
government benefits apply solely to drug offendersand others were covered in the
section on public housing. This is because in the 1990s, there was a massive wave of anti-
crime legislation that vastly increased the amount of civil disabilities against drug felons.
While Nixon may have started the War on Drugs, the legislatures during the Bush (Sr.)
and Clinton years drastically added to the issue of civil disabilitiesa fact that likely
accounts for at least part of the massive increases in drug felons and recidivism in the
90s. According to 21 U.S.C. § 862 and U.S.S.G. §5F1.6, drug offenders convicted after
September 1, 1989 will have restrictions put on their ability to receive grants, licenses,
contracts, and other federal benefits, retirement, welfare, Social Security, health,
disability, public housing, and benefits based on military service (U.S. Office of the
Pardon Attorney 1996, 11). The period of disability is shorter for possession [21 U.S.C. §
862(a)] than for trafficking [21 U.S.C. § 862(b)]; is permanent upon third conviction of
trafficking [21 U.S.C. § 862(a)(1)(C)]; can be shortened for entering, completing, or
32


(because of capacity issues only) being unable to attend drug rehabilitation or a drug-
treatment program [21 U.S.C. § 862(c)]; and does not apply to people who enter witness
protection or offer information or testify against someone else [21 U.S.C. § 862(e)] (U.S.
Office of the Pardon Attorney 2006, 10). In 1996, more disabilities were added for drug
felons (even just possession), including inability to receive food stamps or temporary
assistance to needy families (TANF) [21 U.S.C. §862a(a),(b),(d)(2)] and inability to
receive federal student aid for college for a period of two years after a first conviction [20
U.S.C. § 1091(r)] (U.S. Office of the Pardon Attorney 2006, 10). Finally, passports may
be revoked [22 U.S.C. § 2714(a)(2)] or not issued [22 U.S.C. § 2714(a)(1), (b)(1)] if a
person is convicted of drug crime involving international borders or direct use of a
passport as long as a person is in prison, on supervised release, in a jail-type facility, or in
a halfway or treatment center [22 U.S.C. § 2714(c), (e)(4)] (U.S. Office of the Pardon
Attorney 2006, 10).
Retirement Benefits
5 U.S.C. § 8312 and 42 U.S.C. § 402(u)(l) state that people, survivors, and
beneficiaries of people owed annuity or retirement may be denied or subject to additional
penalties for old-age, survivors', or disability benefits if the person originally owed was
convicted of certain crimes related to national security. Likewise, these benefits are
suspended for anyone who is convicted of a felony while incarcerated [42 U. S .C.
§402(x)(l)(A)] (U.S. Office of the Pardon Attorney 1996, 11).
Military Benefits
In certain cases, military benefits will be stripped from people convicted of
felonies during or after their service; however, the majority of felons discussed in this
33


thesis will not have their benefits stripped. Military benefits will be stripped from anyone
convicted of mutiny, treason, sabotage, or assisting the enemy (38 U.S.C. § 6104(a)) and
anyone convicted of subversive activities (38 U.S.C. § 6105(a)), which are the above,
but also convictions like spying for the enemy or abetting espionage (10 U.S.C. § 906; 18
U.S.C. §§ 792, 793, 794, 798); illegal production, use, storing, etc. of biological,
explosive, nuclear, or chemical weapons, weapons of mass destruction (18 U.S.C. §§
175, 229, 831); genocide (18 U.S.C. § 1091); terrorism and killing aU.S. citizen off U.S.
soil or attempted or conspiracy to commit murder (18 U.S.C. §§ 2332a, b). Starting at day
61 of a prison sentence, military pensions will stop paying to a felon until released;
however, the Secretary may pay the pension to the spouse or child, if qualified (38 U.S.C.
§ 1505). Also, National Service Life Insurance and Servicemens Group Life Insurance
will not pay for mutiny, spying, treason, or desertion (38 U.S.C. §§ 1911, 1954, 1973).
Nor is it be paid if the persons death happens as lawful punishment for a crime or
military or naval offenseexcept when killed by an enemy of the U.S. (38 U.S.C. §§
1911, 1954, 1973) (U.S. Office of the Pardon Attorney 1996, 8; U.S. Office of the Pardon
Attorney 2006, 3-4). The Office of the Pardon Attorney writes, According to the
Veterans Administration, all veterans benefits are considered gratuitous; therefore, the
benefits forfeited under §§ 6104(a) and 6105(a) include pension, disability,
hospitalization, loan guarantees, and burial in a national cemetery (2006, 3-4).
Holding Office, Voting, and Jury Service
Federally, felons are not allowed to sit on juries, but can hold any federal office,
including the President of the United States. Voting rights are state-by-state, per the 14th
Amendment.
34


Right to Hold Office
The constitution does not prohibit all felons from holding federal office: just
treasonous onesand many of those are temporary bans (e.g., five-year ban for
advocating the overthrow of the government). This creates a considerable irony: a
feloneven one who advocated for a revolutioncan be a federal senator or
representative, vice president or president, but they will likely have difficulty getting a
federal job, cannot join the military or teach children in many states, might not be able to
work in their chosen field, etc.
U.S. Constitution article I, §§ 1,2, and 3, as many Americans know, lays out the
rules about the representatives of the Congress of the United States. Section two states
that representatives must be at least 25 and must have lived in the U.S. at least seven
years. Section three states that senators must be at least 30 and must have lived in the
U.S. at least nine years. Article II § 1 mandates that the president must be a natural born
citizen, at least 35 years old, and have lived in the U.S. at least 14 years. In short, there
are no bans on felons in the Executive Branch of the Federal Government. However,
some felonies automatically ban someone from being a member of congress: basically,
anyone convicted of treason (18 U.S.C. § 2381), bribery (18 U.S.C. § 201(b), 26 U.S.C. §
7213), advocating the overthrow the government (five year ban) (18 U.S.C. § § 2385,
2387). In other words, with the exception of crimes in office, treason, rioting, or betrayal
of trade secrets, most felons can become members of federal congresseven the
President of the U.S.
This, however, is not true on a state level. Each state can make laws prohibiting
felons from being part of their state congresses either while in prison, for a time
35


afterward, or for life. Texas, for instance, bans people with felonies from being an elected
official, unless pardoned. According to Tex. EL. Code ANN § 141.001(a)(4), to be
eligible for public office, a person must have not been finally convicted of a felony from
which the person has not been pardoned or otherwise released from the resulting
disabilities. While this law may seem to some to be illegal on a federal level, Texas
continues to follow it. A few other states also ban felons from holding office until their
civil rights have been restored: Florida (Fla. Const, art. IV § 4), Idaho (Idaho Const, art.
IV § 3), Illinois (10 111. Comp. Stat. Ann. 5/29-15), Iowa [Iowa Code Ann. § 57. l(2)(c)],
Kentucky (Ky. Const. § 150), Mississippi [Miss. Code Ann. § 99-19-35 (2000)], North
Carolina (N.C. Const, of 1970, art. VI, § 8), Ohio [Ohio Const, art. V, § 4 (amended
1976); Ohio Rev. Code Ann. § 2961.01], Utah (Utah Const, art. IV, § 6), and Wisconsin
[Wis. Const, art. XIII, § 3 (amended 1996)] (Steinacker 2003, 805). But the remainder of
the states do it differently. Five add a waiting period: Georgia requires a pardon and a ten
year period since the sentence ended (Ga. Const, art. II, § 2, para. 3); Louisiana [(LA.
Const, of 1974, art. I, § 10 (amended 1997)], Oklahoma (Okla. Stat. Ann. tit. 26, § 5-
105a), and South Carolina (S.C. Const, art. VI, § 1) require a pardon (in the case of South
Carolina) or a fifteen year gap after completion of the sentence before running for office;
and Rhode Island has a three year waiting period after full completion of the sentence
(R.I. Const, art III, § 2), for any felony or any misdemeanor with a sentence of six-
months or more (Steinacker 2003, 807). Five states permanently deny felons the right to
hold office, even if civil rights are restored: Alabama [Ala. Code § 36-2-1 (2001)],
Arkansas [Ark. Code § 16-90-112(b)], Delaware (Del. Const, of 1897, art. II, § 21),
Indiana (Ind. Code Ann. § 3-8-1-5), and Pennsylvania (Pa. Const, art. II, § 7) (Steinacker
36


2003, 807).
Disenfranchisement
Under federal law, voting rights are mostly state rights, but partially federally
mandated. Article II, section 1 lays out the Electoral Collegeamendment XII
supersedes it for vice and presidential elections. The other relevant amendments are XIV
XIII, XIX, and XXVI. They state that male citizens over 21 cannot be denied the right to
voteunless they were previously involved in a rebellion or other crime (XIV).
The amendment of major interest here is the 14th. As the Office of the Pardon
Attorney points out, The power of the states to deny the right to vote because of
participation in a crime is expressly recognized in the Fourteenth Amendment. U.S.
Constitution Amendment XIV, § 2 (U.S. Office of the Pardon Attorney 1996, 6). This is
a strong legal opinion because in Richardson v. Ramirez (1974), the Supreme Court held
that a state banning felons from voting does not violate the 14th Amendment. Banning
someone from voting is only illegal if a group or individual knowingly bar someone from
voting when they would otherwise legally have the right to (42 U.S.C. § 1973gg-10). The
14th Amendment allows for this discrimination; therefore, felons 14th Amendment rights
are not being denied. However, felons still have the option of moving to one of the many
states that does not ban them from voting after finishing their sentence or attempting a
sealing, expungement, or gubernatorial pardon. According to the ACLU, there are six
variations in state laws concerning felon disenfranchisement: (1) some people with
felony convictions cannot vote (Alabama, Arizona, Kentucky, Mississippi, Nevada,
Tennessee, Wyoming, and Virginia); (2) all people with felony convictions are
permanently disenfranchised (Florida and Iowa); (3) people in prison, on parole and on
37


probation cannot vote. People with felony convictions can vote upon completion of
sentence (Alaska, Arkansas, Delaware, Georgia, Idaho, Kansas, Louisiana, Minnesota,
Missouri, Nebraska, New Mexico, New Jersey, North Carolina, Oklahoma, South
Carolina, South Dakota, Texas, Washington, and Wisconsin); (4) people in prison
cannot vote. Everyone else can vote (Illinois, Indiana, Maryland, Massachusetts,
Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Road
Island, Utah, and Washington D.C.); (5) people in prison and on parole cannot vote. All
other people with criminal convictions, including people on probation, can vote
(California, Colorado, Connecticut, and New York); and (6) everyone has the right to
vote (Maine and Vermont) (American Civil Liberties Union).
Jury Service
Federal law bans felons convicted of a felony from service on federal juries
unless they have had their civil rights restored (28 U.S.C. §§ 1865(b)(5), 1869(h) and 25
C.F.R. 11.314) (U.S. Office of the Pardon Attorney 1996, 6). The Supreme Court notes in
United States v. Hefner (4th Cir. 1988) that requiring a pardon under § 1865(b)(5) unduly
limits the ways in which someone may have their civil rights restored. Because of this,
they recommend an affirmative act in the law to help people restore their civil rights and
their ability to meet the eligibility criteria in § 1865(b)(5) (U.S. Office of the Pardon
Attorney 1996, 6). But little follow-up has been done about this federally and like other
disabilities, jury service varies by state. There are states that have vague lifetime bans
with no relief in the state statutes like Alabama (Ala. R. Jud. Admin. Rule 40; Code of
Ala. §§ 12-16-150, 12-16-60); states that restore the civil right of jury service right after
someone finishes their sentence like Idaho (Idaho Code § 2-209); states that ban felons
38


from jury service until they are pardoned or have civil rights restored like Alaska (Alaska
Stat. § 09.20.020, 33.30.241), Florida (Fla. Stat. § 40.013), and Georgia (O.C.G.A. §§ 15-
12-40, 15-12-40.1, 15-12-60); states where a felon has to petition to have jury service and
other civil rights restored like Arizona (A.R.S. § 13-904) or Delaware (10 Del. C. §
4509); states where just the treasonous in office are excluded from jury service like
California (Cal. Const. Art. VII § 8); and states where you cannot vote for a period of
time like Connecticut (Conn. Gen. Stat. § 51-217), which has a seven year ban (from time
of conviction) on jury service for felons (American Bar Association).
Gun Ownership
Felons, for the most part, are federally not allowed to own guns. The law,
however, is nuanced. This section covers what is necessary to understand a felons
relation to gun rights.
Basics
As part of the Gun Control Act of 1968 (and since amended), 18 U.S.C. §
922(g)(1), anyone who has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year is barred from possessing, transporting,
shipping, or receiving a gun or ammunition. But also, the time of sentencing is a bit
skewed because of the phrase punishable by imprisonment for a term exceeding one
year: some felonies have a punishment of under a year and some misdemeanors have
punishments over a year. This phrase actually goes back in history and stands in for what
is now called a felony. To clarify this, 18 U.S.C. § 921(a)(20)(B) states that
misdemeanors punishable by less than two years are exempt from this and that the
decision of what is a felony or misdemeanor is up to the state of conviction. This leaves
39


the federal government out of that issue, but allows them to persecute felons in some
states and ignore misdemeanants with equivalent charges, but a different in other states
(because of varying state laws) for possessing, transporting, shipping, or receiving a gun
because of it (U.S. Office of the Pardon Attorney 1996, 14).
In short, all felons with a few exceptions are banned from touching guns. The
felonies that are not covered by the federal gun ban are (1) those pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other similar offenses relating to
the regulation of business practices, per 18 U.S.C. § 921(a)(20)(A); (2) felony
convictions from foreign countries, [see Small v. United States (2005)]; and (3) anyone
with an expunged, pardoned, or set aside record, or who has had their civil rights
restored, are not considered convicted unless the specific expungement, pardon, etc.
specifically denies this individual gun rights [18 U.S.C. § 921(a)(20)(B)]; however, this
generally has to be done in the same court that sentenced the felon (U.S. Office of the
Pardon Attorney 1996, 14).
Can a Felon Have Their Gun Rights Restored?
Gun rights are restored by being pardoned or having civil rights restored in the
state of conviction [18 U.S.C. §§ 921(a)(20); (a)(33)(B)(ii)], both of which are covered in
more detail in Chapter Three. Though it is up to the Federal Courts to ultimately decide if
a specific felon has their rights restored after being arrested for gun possession, higher
courts look to the law of the state to make their decision. Also, under 18 U.S.C. § 925(c)
someone can apply to the Attorney General of the United States to have their gun
disabilities relived if the disability and the current temperament, reputation, and record of
the civilly disabled person is such that the applicant will not be likely to act in a manner
40


dangerous to public safety and that the granting of the relief would not be contrary to the
public interest. Previously, the ATF was in charge of it, but in the early 1990s, the
federal government cut their funding for this project; however, the Supreme Court found
this bureaucratic denial to be well within the confines of the law [see United States v.
Bean (2002)].
However, whether or not a state has the right to restore just gun privileges is an
open question that the Supreme Court, nor any of the circuit courts, has taken a definitive
stance on yet. They generally just skirt around the issue of states being able to offer
felons gun privileges by finding other ways in which a plaintiff has broken the law. Or as
Donald Russell more eloquently writes in his majority opinion in United States v.
Shoemaker (Ct. of App., 4th Cir. 1993),
We did not resolve whether this restoration expressly provide[d] that [he could]
not ship, transport, possess, or receive firearms by answering simply yes or
no. Instead, we focused on the underlying section 922(g)(1) charge and
examined whether the conduct that the government alleged violated section
922(g)(1) was conduct that was expressly prohibited by the restoration.
This means that there is an argument to be made that if the state has sanctions allowing
felons firearms or certain firearms, then federally, they are excluded from the Gun
Control act under 18 U.S.C. § 921(a)(20)(B). Similarly, in United States v. King (4th Cir.
1997), which could have been a fascinating examination of this, asks what does civil
rights restored mean? Is this to have all of a persons rights restoredvoting, public
office, votingor do specific sanctions about firearms themselves count? However, it
was decided that the defendant was still in violation of the state law and was not eligible
to have the gun collateral consequence relieved yet (state statute said five years after
release, but defendant was still on parole); therefore, he was not covered under 18 U.S.C.
41


§ 921(a)(20)(B). It was also decided that even if a state law in North Carolina may have
allowed a felon to possess a gun, federal law explicitly prohibits the possession of
ammunition, while state law refers only to the right to possess firearms [King (1997)].
Meaning that as far as the Supreme Court is concerned, the state must explicitly allow
felons to have guns and ammunition. And even then, the Court may find issue with state
law. Particularly if one were to look to 18 U.S.C. § 927, which states that,
no provision of this chapter shall be construed as indicating an intent on the part
of the Congress to occupy the field in which such provision operates to the
exclusion of the law of any State on the same subject matter, unless there is a
direct and positive conflict between such provision and the law of the State so that
the two cannot be reconciled or consistently stand together (emphasis added).
In other words, the federal law should not be thought of as taking the place of a states
right to choose on this matter unless this right to choose creates a direct and positive
conflict between the Gun Control Act and state law; however, in that case, it is not clear
what will happen other than that then some provision(s) of this chapter shall be
construed as indicating an intent on the part of the Congress to occupy the field in which
such provision operates to the exclusion of the law of any State on the same subject
matter (18 U.S.C. § 927).
However, in United States v. Shoemaker (1993), the ruling is that
Shoemaker's restoration did not expressly provide that [he could] not ship,
transport, possess or receive firearms within the meaning of section 921(a)(20),
and section 921(a)(20) exempted Shoemaker from the provisions of section
922(g)(1). As a result, the district court erred in denying Shoemaker's motion to
dismiss Count III, which charged him with violating section 922(g)(1) by
possessing firearms in his home.
Meaning that in this case, Shoemaker was allowed to have firearms in his home because
in the state that convicted him and he lived in, his rights to have firearms in his house
have been restored because of a state statute allowing it.
42


Sex Offender Registries
At this point, sex offender registries are something that most Americans know
about because all states require registration for sex offenses. Interestingly, there are some
other statutes that require registration for non-sexual felony offenses in certain states (see
Fla. Stat. § 775.13 andND. Cent. Code § 12.1-32-15), but these are beyond the scope of
this thesis because of their rarity and lack of clear regularity across states (U.S. Office of
the Pardon Attorney 2006, 12). Like many of the civil disabilities, the statutes about sex
offender registries are mostly state mandates and not federal laws. Meaning that there is
some variation around things like crimes requiring registration, duration of registration,
penalties for failure to register, statutes applying only to federal offenders, whether or not
juvenile offenders have to register, and whether or not a person can petition to have the
registration disability removed (U.S. Office of the Pardon Attorney 1996, 12-13).
However, there are federal guidelines that states must follow, for instance the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42
U.S.C. § 14071 and 64 Fed. Reg. 572, 3590) and the Pam Lychner Sexual Offender
Tracking and Identification Act of 1996 (42 U.S.C. § 14072) (U.S. Office of the Pardon
Attorney 2006, 12). While often called Megans Laws, the Wetterling Act sets the
minimum national standards for sex offender registries including offenses requiring sex
offenders to register, duration of registration, how often to update and verify information,
and release of information to the public including maintaining websites with sex offender
information, using local news media or the Internet to warn of a sexually violent
predator, and canvassing the area with photos (U.S. Office of the Pardon Attorney 2006,
12). 42 U.S.C. § 14071(a) of the Wetterling Act allows the U.S. Attorney General to
43


promulgate regulations governing the establishment of state registration programs
mandating that anyone convicted of a crime against a minor or labeled a sexually violent
predator register with specific state law enforcement agencies for at least 10 years after
the end of their sentence (U.S. Office of the Pardon Attorney 1996, 12-13). States that do
not comply with the Wetterling Act face a ten percent reduction in federal law
enforcement grants [42 U.S.C. § 14071(g)(2)] (U.S. Office of the Pardon Attorney 2006,
12).
Responsibility for having correct information in the registry, however, is
ultimately up to the individual sex offenders. State offenders must report their
information to the FBI and the state they live in as well as report it to any state that they
are about to move to [42 U.S.C. § 14071(g)(3), (i)(l)] (U.S. Office of the Pardon
Attorney 2006, 12). Likewise, federal sex offenders and military sex offenders are
required to register in the states in which they live, work, or go to school [42 U.S.C. §
14071 (i)(3), (i)(4) and 18 U.S.C. §§ 3563(a)(8), 3583(d), 4209(a)]] (U.S. Office of the
Pardon Attorney 2006, 12).
Adopting Children or Being a Foster Parent
There are many laws varying state-by-state about who can and who cannot adopt
children or be a foster parent. In almost all of the states, there are laws about this. These
laws vary from the lax [e.g., Wyoming who has a couple of laws (Wyo. Ann. Stat. § 1-
22-104 and Code of Wyo. Rules § 049-040-001) that require petitioners to file an
affidavit stating felonies and misdemeanors with adoption petitions, which may or may
not be followed up on by the state social services] to the almost unforgiving [e.g.,
Alabama, which following Ala. Code §§ 26-10A-19; 38-13-3(5) and Ala. Admin. Code
44


r.660-5-22-.03, runs an FBI background check on all members of the household over 19
and will deny any adoption or foster applications with household members who have
misdemeanor charges in the last five years or felonies in the last ten years] (U.S.
Department of Health and Human Services 2011, 8-65). Most states, however, seem to be
content with foster or adoptive parents just not having any sexual or violent crimes,
domestic violence, crimes against children, or felonies in the last five years (U.S.
Department of Health and Human Services 2011, 8-65).
Conclusion
From this, it is easy to see that there are many civil disabilities of convicted
felonsand that the disabilities vary from simple to highly complex and from relevant to
the charge to completely irrelevant. And there are some odd elements like a felon can be
president (commander-in-chief of the military), but cannot own their own firearms or
cannot be on the board of a labor union (for 13 years after finishing sentencing).
Intuitively, it makes sense to have some civil disabilities related to the charges (e.g., sex
offenders not working around children, money launderers not working in banking);
however, what about the question of letting someone who had a tiny amount of marijuana
a decade ago in Arizona teach or own firearms? At this moment, there are four questions:
(1) what can someone do to remove civil disabilities? (2) are civil disabilities wrongful
discrimination? (3) when are civil disabilities wot wrongful discrimination? and (4) are
civil disabilities equivalent with civil death? These four questions will occupy most of the
rest of this thesis. Now, I turn to the few ways in which someone can escape civil
disability.
45


CHAPTER III
OVERCOMING CIVIL DISABILITIES
Now that I have discussed the individual civil disabilities in detail, this chapter
will detail how felons can overcome civil disabilities. Presently, there are only three ways
to remove long-term or permanent civil disabilities: sealing or expunging, gubernatorial
pardon, and presidential pardon; however, I also explore a few alternative ideas that may
offer hope in the future: state-by-state pardon offices, market incentives, civil disabilities
as a violation of the right to privacy, civil disabilities as cruel and unusual punishment,
and ex-offenders considered as a suspect class under equal protection. Then, I discuss
identity politics for felons. This is a tricky area because those who claim the label felon
must take the previous baggage and negative connotations it has instead of trying to hide
their identity by passing as a NORP. NORP stands for Normal Ordinary Rational
Person. This is a term the Colorado State Department of Corrections uses to differentiate
prisoners/criminals (who have criminal thinking) from everyone else (NORPs)
(Colorado Department of Corrections 2013, under The Shield of Professionalism
slideshow). There, I explore whether or not a call for solidarity and (a) large-scale social
movement(s) would be helpful. But given the advantages of passing, the question is,
will it?
Current Ways to Overcome a Felony
At the moment, there are three ways to remove the civil disabilities from a
felonyor as the law often calls it, having civil rights restoreda presidential pardon,
46


a gubernatorial pardon, and sealing/expunging. Each has their limitations, strengths, and
weaknesses. This section will explore each in detail.
Presidential Pardons
A presidential pardon restores all civil rights and removes all disabilities related to
the conviction, but is only applicable to federal felonies. State felonies cannot be
removed by a presidential pardon, but it can help the state-convicted felon to regain some
federal rights like sitting on a federal jury. However, a presidential pardon does remove
some specific federal disabilities, if still applicable after a getting or being denied a state
pardon, sealing, or expungment. For instance, a person who has received a presidential
pardon cannot be deported for that criminal conviction (8 U.S.C. § 1251 (a)(2)(A)(iv)),
will receive old age or disability insurance denied because of court imposed restrictions
(42 U.S.C. § 402(u)(3)), and will have veterans benefits removed for subversive acts
restored (38 U.S.C. § 6105(a); 38 C.F.R. §§ 3.903, 3.904) (U.S. Office of the Pardon
Attorney 1996, 13).
Gubernatorial Pardon
Many states allow for a felony to be removed or lessened with a pardon from the
governor. For instance, Colorado allows the governor to remove all legal disabilities,
including the firearm ban, and basically restores a felons civil rights (Colo. Const. Art.
IV, Sec. 7).
Sealing and Expungement
In some states, a state felony conviction can only be removed through sealing or
expungement. For instance, in California, a felony cannot be permanently removed by a
gubernatorial pardon and thus will still come up on background checks. Although, this
47


will allow them to own guns (unless a violent felon), sit on a jury, and become a parole or
probation officer, a pardon is a last resort and only really for felons who cannot have their
records sealed or expunged (California Penal Code 4852.17). Each state has their own
restrictions about who can and cannot apply for sealing or expungement. For the most
part, it means going back to the original sentencing court after many years off paper
without accruing any other charges, accompanied by an attorney that specializes in
sealing and expungement who makes a case that the felon has been punished long enough
and should be considered a full citizen again. This laborious and complicated process
means this procedure will likely cost a felon a few thousand more dollars on top of all the
penalties they have already paidand potentially some processing and paperwork fees
for just a chance to be declared reformed in the eyes of the law.
A Note About Civil Rights Restoration
Depending on the state or federal statutes, a person may or may not have some or
all of their civil rights restored after a conviction of a felony. For instance, in my state of
Colorado, after completing their sentence and probation, half-way, or parole, a felon is
able to sit on a jury, vote, and run for office, but is still a convicted felon, subject to the
remaining litany of disabilities. These disabilities that I described in previous chapters
make life more difficult for many felons by putting often arbitrary restrictions on their
lives. Even someone given partial relief from disabilities will still be barred from sitting
on a federal jury because 28 Ci.S.C. § 1865(b)(5) says that to sit on a federal jury, a felon
must have had their civil rights fully restored. The Pardon Office writes that this has
generally been interpreted by federal courts and the Administrative Office of the United
States Courts to require an affirmative act by the state (such as pardon or amnesty)
48


before a felon can sit on a federal jury (U.S. Office of the Pardon Attorney 1996, 13).
This means that if someone lives in a state like Colorado where felons can sit on state
juries after completing their sentence, they still cannot sit on a federal jury until they have
their civil rights restored through a pardon or expungement. United States v. Hefner
(1988) ruled that some affirmative act recognized in law must first take place to restore
one's civil rights to meet the eligibility requirements of section 1865(b)(5) (U.S. Office
of the Pardon Attorney 1996, 13).
Future Possible Ways to Overcome Civil Disabilities: State or Local Level
Now that I have covered the few ways there are to remove civil disabilities, I will
now discuss a few possible future alternatives for at the social, state, local level. While
these methods do not currently work to remove civil disabilities, there is some hope for a
few of them to help in the future. These alternatives are a state-by-state pardon attorney,
market incentives, and sentencing.
State-by-State Office of the Pardon Attorney
To deal with the issues of civil disabilities and civil rights restoration, the federal
government has The Office of the Pardon Attorney. They do much of the legwork of the
presidential pardon covered above; however, this office and federal pardons only help
federal prisoners because state criminal charges are in the jurisdiction of the state that
charged the criminal. There is nothing stopping individual states from starting their own
office of the pardon attorney to help felons become full citizens again. If they were to do
this, it would not only greatly lessen the burden of individual courts, but would open the
space for more felons to have their records sealed, expunged, or pardoned.
49


Market Incentives
While some would rightfully argue that some of discriminations facing felons are
business related (e.g. housing and job discrimination centered on business liability and
trustability of tenants and employees) and the economic gains of the 1990s were
specifically because of mass incarceration, there are some other facets of capitalism that
could help, rather than hinder the lives of felons. That said, discrimination, in a certain
sense, could be read as antithetical to capitalism because it can hurt business. In this case,
to discriminate against felons creates a situation in which there is a smaller labor force,
less possible customers, and less possible business growth. Furthermore, the promotion of
discrimination has been argued by the Supreme Court to harm the free flowing of
business in a few cases. For instance, in The Heart of Atlanta Motel, Inc. v. United States
(1964), the Court decided that the Heart of Atlanta Motel must accept business from all
races despite local segregation laws in Atlanta. Because of its proximity to interstates and
its clientele being mostly from out of state, if the motel and similar motels did not accept
all races, it would create a large barrier to the free movement of intrastate business
transactions. In a similar way, not being able to work in certain industries and live in
certain areas prevents business growth from happening by hindering possibilities like a
larger pool of laborers by including felons (which could lower the cost of labor), felons
bringing their experiences and knowledge to business or work-related opportunities (e.g.,
ex-hackers helping write anti-hacking or anti-virus code or felons as teachers for at risk
schools who can offer wisdom learned through making mistakes to the kids who need it
the most), more growth in the rental housing market (because so few places rent to felons
currently, allowing felons to rent would drastically increase the possible tenants for
50


rentals and reduce illegal sublets), an increase in construction (to supplement the
increased demand in rentals), etc. While there are many possible ways in which opening
markets to more people could expand labor and business, these are just a few.
Sentencing
Civil disabilities, if so important, could be applied during sentencing. Given that
constitutionally, our system is setup to punish people through the judicial branch only,
civil disabilities can easily be read as a bill of attainder, which is essentially where the
executive branch decides to make laws adding additional punishments to criminal
charges and are federally illegal (U.S. Const. Art. 1, § 9). Instead, the original sentencing
courts themselves could apply civil disabilities. It makes more sense to have tailored
disabilities to specific offenses (e.g., the sex offender registry or creating laws like if
someone runs a background check, they can only see charges relevant to the issue or job
at hand) or to add disabilities as part of specific sentence (for instance, person xyz cannot
do xyz and can be arrested on the spot and sentenced for violating this like a restraining
order or rules of probation, parole, or a half-way house) as this would minimize crime
and recidivism by offering felons opportunities to rejoin the community at large, but
keeping those who may pose a danger in certain areas out of those areas. For instance, it
makes perfect sense to prevent pedophiles from teaching K-12, but it is not as clear-cut
when discussing whether or not someone with a felony theft, drug possession, or even a
different type of sex offenderfor instance, someone with an indecent exposure charge
who was seen drunkenly peeing in a bush at a party in college and arrestedshould or
should not be a teacher. These are the kinds of questions we as a country need to look at:
what actually determines the merit of someones character? How can this accurately be
51


judged? An alternative to this would be to create crime-specific-only civil disabilities;
however, this situation should only happen if felons are offered suspect status (I discuss
suspect status later in this section) and these laws could always undergo strict scrutiny.
Future Possible Ways to Overcome Civil Disabilities at the Federal Level
While most of the solutions for civil disabilities would necessarily have to happen
at a state or county level in our current system, the federal Supreme Court could alter this
situation if a case were to somehow arise for them that afforded the opportunity to
consider civil disabilities under judicial review. If this were to happen, the judges may or
may not make a monumental argument in favor of felons having more of their rights
returned to them; however, given the following and my own pessimism, I do not foresee
this happening, but rather see this section as an exploration of what would have to happen
in order for the Supreme Court to declare civil disabilities to be unconstitutional. It is
much better thought of as one more exploration of the inability to escape civil disability
than as a hope for a changed future. First, I write about the 8th Amendment (cruel and
unusual punishment) and then the 14th Amendment for the case that felons should be
considered a suspect class under equal protection doctrine.
Are Civil Disabilities Cruel and Unusual Punishment?
The 8th Amendment reads, Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted. This raises the question,
are civil disabilities cruel and unusual punishment? While some people would say that
civil disabilities are not punishment [e.g., Kansas v. Hendricks (1997), which argued that
civil disabilities/collateral consequences are civilly imposed; therefore, are not another
type of legal punishment], a quick look at Black 's Law Dictionary makes this argument
52


highly questionable. As quoted in chapter one, Blacks says, civil disability. (18c) The
condition of a person who has had a legal right or privilege revoked as a result of a
criminal conviction, as when a persons drivers license is revoked after a DWI
conviction (9th ed., s.v. disability). Is taking away rights or privileges cruel and
unusual punishment? That is an interesting question I cannot quite answer because the
civil disability definition does not discuss whether or not civil disability is punishment;
however, earlier, I wrote that being civilly disabled was to have collateral consequences.
If rephrased, a better question can be posed: is the condition of having collateral
consequences (being civilly disabled) cruel and unusual punishment? Blacks writes,
collateral consequence. A penalty for committing a crime, in addition to the
penalties included in the criminal sentence. An example is the loss of a
professional license. When a collateral consequence exists, a defendant's appeal
of a conviction does not become moot when the criminal sentence is completed.
(9th ed., s.v. collateral consequence)
This raises question two, is a penalty a punishment? Blacks says, penalty. (15c) 1.
Punishment imposed on a wrongdoer, usu. in the form of imprisonment or fine... (9th
ed., s.v. penalty). At this point, I can more than safely argue (1) if a person has
collateral consequences, they have civil disabilities (as civil disabilities are the condition
of having collateral consequences); (2) having 1+ collateral consequence is a penalty; and
(3) a penalty is a punishment; therefore, civil disabilities are a form of punishment. While
this philosophic exercise allows me to discuss cruel and unusual punishment in this
context, it still does not help with question one: are these punishments (collateral
consequences/civil disabilities) cruel and unusual punishment or are they decent and
usual punishments?
Supreme Court Cases About Cruel and Unusual Punishment. Probably the
53


most important aspect of cruel and unusual punishment jurisprudence for our purposes is
the proportionality principle, or the idea that punishment should be proportional to the
crime committed. One of the most famous Supreme Court cases about the proportionality
principle is Kennedy v. Louisiana (2008), in which it was decided that the death penalty
was too cruel and unusual for an aggravated child rape and sodomyone which tore the
girl so badly that she needed emergency medical attention, but was not intended to kill,
nor killed the child. Similarly, this is why Robinson v. California (1962) overturned a
mans 90-day sentence for being a drug addict; Enmund v. Florida (1982) argues that the
death penalty is not proportional in the case of a man who was a getaway driver for a
robbery and murder he did not anticipate or participate in (one of the first proportionality
principle cases); and Trop v. Dulles (1958) argues that it is unconstitutional for the
government to revoke the citizenship of a citizen as punishmentestablishing the
necessity of having evolving standards of decency around punishment. Tison v.
Arizona (1987), however, redefines the proportionality principle by determining that if
someone is involved enough in or their actions negligently created the conditions for
murder, then they too can be given the death penalty. In this case, two sons break their
father from jail and the father and his cellmate kill people on the way out of the prison.
The sons are held liable for their part in the deaths of the murdered. However, sometimes,
the Court will allow a harsh sentence through anyway. For example, Harmelin v.
Michigan (1991) ruled that a life sentence without the possibility of parole was an
appropriate punishment for 672 grams (a little under a pound and a half) of cocaine.
Supreme Court Cases About Civil Disabilities. While there are quite a few
cases about cruel and unusual punishment, there are only a small group of cases about
54


civil disabilitiesthe majority of which are about the deportation of immigrants
convicted of felonies or people who were unaware of civil disability before sentencing. In
this section, I discuss a variety of cases about civil disabilities to explore whether or not
an argument could be made for civil disabilities as cruel and unusual punishment
following any older Supreme Court rulings.
No Due Process Rights to Warn of Collateral Consequences. The first similarity is
that in general, the due diligence about the ramifications of a sentence (i.e., collateral
consequences and civil disabilities) is solely that of the defendant to know and
understand: courts, nor the defense or district attorneys, have any due process obligation
to disclose civil disabilities or collateral consequences to defendants with the exception of
immigration, which was added to the 6th Amendment in 2010 (but only for cases after
2010 and not retroactively). This duty to warn of deportation was added to the 6th
Amendment after Padilla v. Kentucky (2010) was heard in the Supreme Court and they
decided to overturn the Kentucky State Supreme Courts decision that deportation was
okay because it was an indirect collateral consequence of conviction, arguing that
attorneys must now inform their clients about the possibility of deportation because of a
felony conviction. What is interesting is that this decision is different from the Courts
stance on this issue for the other civil disabilities and for immigration up to this point in
historyeven retroactively [for example, denying Chaidez v. United States (2013)].
Maybe it was because Padilla was a war veteran, had lived in the U.S. for over 40 years,
and was told by his attorney that his guilty plea would not cause him to be deported. The
latter option seems to be the most plausible given similar cases like United States v.
Russell (Dist. of Col. Cir. Ct. App. 1982) wherein the District of Columbia Circuit Court
55


overturned the original ruling because prosecutors explicitly told Russell that he would
not be deported upon conviction before he entered his plea, which is a lie. Otherwise,
however, there are many cases in which this same exact argument (bad council, were not
informed of deportation, civil disabilities, therefore, want a retrial) is denied by the
Supreme Court or the Court of Appeals: United States v. Sambro (D.C. Cir. 1971),
Michel v. United States (2d Cir. 1974), United States v. Gavilan (5th Cir. 1985), United
States v. Campbell (1985), United States v. Yearwood (1988), United States v. Del
Rosario Ct. of App., Dist. of Col. Cir. 1990), Varela v. Kaiser (10th Cir. 1992), United
States v. Banda (5th Cir. 1993), Contreras v. Schiltgen (9th Cir. 1997 & 9th Cir. App.
1998), United States v. Mercurris (1999), Chong v. District Director, I.N.S. (3d Cir.
2001), and United States v. Parrino (2d Cir. 1954) wherein contra the later Padilla
(2010) the Court of Appeals denied a mans plea that his lawyer told him he would not be
deported for a felony conviction. Similarly, state Supreme Courts have consistently voted
contra Padilla (2010): State v. Ginebra (Florida 1987), Mott v. State (Iowa 1987), State v.
Santos (Wisconsin 1987), Com. v. Frometa (Pennsylvania 1989), and People v. Ford
(N.Y. App. Div. 1995). In United States v. Campbell (1985), the Court stated,
deportation is admittedly a harsh consequence of a guilty plea, but so are many
other collateral consequences. ... It is highly desirable that both state and federal
counsel develop the practice of advising defendants of the collateral consequences
of pleading guilty; what is desirable is not the issue before us.
But even though it is highly undesirable, these practices were not abolished. And in
United States v. Banda (1993), it says per Gavilan (5th Cir. 1985),
defendants have no due process right to be informed of the collateral
consequences of criminal proceedings. That principle applies even to harsh
collateral consequences, such as loss of the right to vote, to travel abroad, or to
drive a car. ... Deportation is concededly a harsh collateral consequence.
However, loss of the rights to vote, to travel, and to do a myriad other things a
56


common citizen may do are also harsh consequences. Failure by counsel to advise
a client of these or any other collateral eventualities would not constitute a Sixth
Amendment violation just as failure by the court to inform of such collateral
consequences does not violate Fed. R. Crim. Proc. 11.
Counsel and courts likewise have no duty to disclose any of the other civil disabilities.
According to the Supreme Court and the Federal Court of Appeals, ignorance of no civil
disabilities is a valid reason to remove a guilty plea [Meaton v. United States (5th Cir.
1964), Trujillo v. United States (5th Cir. 1967), Wadley v. Davis (5th Cir. 1971), Johnson
v. United States (1972)]. Nor will ignorance of the disabilities help someone avoid
collateral consequences like losing a drivers license after getting a DUI [Moore v.
Hinton (5th Cir. 1975)], discharge from the military [Redwine v. Zuckert (D.C. Cir.
1963)], going to an institute rather than a prison [Cuthrell v. Director, Patuxent Instiution
(1973)], getting fired [State v. Heitzman (New Jersey 1987)], new charges affecting
parole or future charges [Sanchez v. United States (1977), United States v. Probber (2d
Cir. 1999), Major v. State (Fla. 2002)], or mandatory parole [Lane v. Williams (1982)].
Reiterating the points of other judges above, Hinton (5th Cir. 1975), focused on the
disability of driving, writes,
of crucial importance here, however, is the fact that the Alabama Department of
Public Safety, not the court, deprives the defendant of his license, acting under
authority of 36 Ala. Code § 68. The court merely accepts the defendant's plea, and
sentences him to a fine and/or imprisonment. The Department of Public Safety
then institutes a separate proceeding for suspension of his license; this suspension
is not, therefore, punishment imposed by the court as a result of the guilty plea,
but a collateral consequence of the defendant's conviction.
And this sums it up: the court has no obligation to tell someone about civil
disabilities/collateral consequences because they are civilly imposed and therefore, out of
the hands of the legal system itself. Civil disabilities are no excuse to alter sentences or
rescind guilty pleas and the burden of knowledge is in the hands of the person who pleads
57


guilty who in their guilty plea must state that they are intelligent enough to understand
what is happening, know the ramifications, and still want to plead guiltyeven though
the system is far too encompassing for the average person to understand all of it. And
even though these civilly imposed laws are similar to the illegal bill of attainder.
Civil disabilities are not eligible for habeas corpus. Second, civil disability is not
being held in custody. Therefore, civil disability is never a case of being held for
anything and thus, cannot be treated as a direct legal punishment. The Supreme Court
argues repeatedly that civil disability must be thought of as indirect legal punishment that
arises from civil laws, not from courts, sentences, prisons, probation, or parole. This
applies even to the sex offender registry as in Williamson v. Gregoire (9th Cir. 1998).
Being a registered sex offender is not being held in custody. After all, a sex offender just
has to register for the registry by detailing where they are staying, not stay anywhere
specific like they would if imprisoned.
Third Strike laws are not always cruel and unusual. Third, the Court has never
sided completely against third strike laws and has sided with them in some cases, for
example Rummel v. Estelle (1980). However, in some cases, for example Solem v. Helm
(1983), the Court will side (5-4 in this case) that a specific third (or more) strike rule is
cruel and unusual punishment. In Solem, a man is convicted of writing a check from a
fictitious account, giving him seven non-violent felonies and triggering a mandatory life
sentence in his home state of South Dakota. The majority argues that using a modified
version of the Proportionality Doctrine from Enmund v. Florida (1982) in this specific
case, a life sentence is cruel and unusual punishment because his crime is so small. The
dissenters of course argue that this is judicial overreach by the Court. In their opinion,
58


this is a state issue the federal government should stay out of.
Seemingly fundamental rights are not protected for felons. Fourth, people have
tried to petition the Supreme Court for judicial oversight on individual civil disabilities
with little to no luck. Probably the most famous of these cases is Richardson v. Ramirez
(1973), which argued that a state barring a felon from voting in state and federal elections
is not a violation of the 14th Amendment; however, there have been several others. In
United States v. Green (8th Cir. 1993), it was argued (and rejected) that felon
disenfranchisement is irrational, which violates the fourteenth amendments equal
protection clause (covered in detail in the next section) because it offers the Supreme
Court the power to veto any irrational laws (U.S. Office of the Pardon Attorney 2006, 1).
Likewise, there have been a few cases in federal and state courts in which it has been
argued that felon disenfranchisement is racially discriminatory because of the
disproportionate amount of racial minorities that have felony charges, for example, Baker
v. Pataki (2d Cir. 1996), Wesley v. Collins (6th Cir. 1986), Farrakhan v. Locke (E.D.
Wash. 1997), and Texas Supporters of Workers World Party Presidential Candidates v.
Strake (S.D. Tex. 1981) (U.S. Office of the Pardon Attorney 2006, 1).
The sex offender registry is not cruel and unusual punishment or a violation of
privacy. Fifth, in People v. Adams (N.Y. App. Div. 1990), it is decided that the sex
offender registry is not cruel and unusual punishment. In fact, it is just like all the other
civil disabilities. While this does not preclude the argument that all civil disabilities are
cruel and unusual punishment, it definitely assumes it as the basis for this decision. The
right to privacy was also questioned and denied in relation to sex offender registries
[Russell v. Gregoire (9th Cir. 1997)].
59


Civil disabilities are not ex post facto punishments, bills of attainder, or double
jeopardy. Sixth, civil disabilities, at least thus far, are not considered ex post facto laws
(c.f., Article 1, sections 9-10 of the Constitution). An important case that considered this
issue is Kansas v. Hendricks (1997). Hendricks and Quinn, repeat child molesters, were
civilly committed to a mental institution after completion of their sentence under
Kansass Sexually Violent Predator Act because they were deemed unable to control their
urges to molest children and therefore, unfit to live in society. The Supreme Court
determined that the commitment is civil; therefore, ex post facto or double jeopardy is
irrelevant because the commitment is not part of a criminal proceeding, but rather a civil
action. In Russell v. Gregoire (9th Cir. 1997) and Smith v. Doe (2003), it was found that
sex offender registries do not violate the ex post facto clause for similar reasons. This
argument can be generalized to all civil disabilities: civil disabilities are civilly imposed
and therefore, not part of criminal proceedings; therefore, they are not punishment. Thus,
they cannot be cruel and unusual punishment. [Though, it should be mentioned that they
voted contra to this in Ball v. United States (1986) saying that a felon convicted of
stealing and selling a gun cannot also be charged with possession of a firearm (which is
another felony for a felon).]
To sum this section up, it is rather clear that an argument that civil disabilities are
cruel and unusual punishment or a violation of any other law will probably never be
struck down unless new Supreme Court Justices are elected that are sympathetic to the
plight of felons. While this is highly unlikely given American societys distaste for felons
in general, maybe some judges could be swayed to the side of felon rights. The following
sections explain one of the best justifications for felon rights that I have seen in my
60


research.
Equal Protection and Suspect Status: The Ironically Named Saving Grace?
This section is a highly condensed retelling of Ben Geigers argument in The
Case for Treating Ex-Offenders4 as a Suspect Class (2006). He makes the case that
given the massive amount of civil disabilities facing an ex-offender, felons can be said to
exist within a matrix of oppression equivalent to, or even surpassing, that faced by
immigrants, religious minorities, and ethnic minorities (a digital scarlet letter);
therefore, they should be afforded an equivalent level of judicial oversight: strict scrutiny.
However, while that sounds simple in a nutshell, it is quite a complex ordeal and Geigers
argument is nuanced. I believe, however, that it is worth delving deeply into Geigers
article because not only does it offer one of the clearest cases for felons deserving a
protected status in the U.S., but it also details many of the problems with trying to help
felons to gain more rights and encapsulates much of what I have written about in this
thesis as a whole.
A Quick Explanation of Equal Protection Doctrine. Equal Protection Doctrine
is the name for a certain set of judicial scrutiny for minority groups that the Supreme
Court has argued are an inherent part of the Fourteenth Amendment,
... No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens ... nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
United States v. Carotene Products (1938) is the first case to argue that the Fourteenth
Amendment allows the court to offer special scrutiny to classifications based on certain
4 N.B.: Geiger uses the term ex-offender rather than felon. The terms will be used
interchangeably throughout this section.
61


group traits to prevent undue prejudice against minority groups. This happens in
footnote four and is thus known as the Footnote-Four Rationale (or the Carolene
Products Rationale). It reads,
prejudice against discrete and insular minorities may be a special condition, which
tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry, (quoted in Geiger 2006, 1208)
This Supreme Court decision to protect discrete and insular minorities is the beginning
of equal protection because it defines one of the criteriadiscrete and insularof what
creates a class of people that are discriminated against within the law. The assumption is
that laws are made without prejudice in mind, but sometimes prejudice can slip in
through malice or accident. If a law (or laws) is thought to be prejudicial, the Supreme
Court can look at whether or not the law is prejudicial; however, while this opens the
door for many prejudicial laws to be considered under strict review, many are not
because all that needs to be shown is that there is a rational, legitimate government
interest being served by the law(s) to pass rational reviewand if they were passed, of
course there is usually some argument to be made for it. Thus, most laws will pass
rational review as long as discriminations are not overt or are against a population
deemed worthy of discrimination like Felons, c.f. Richardson v. Ramirez (1974) which
straightforwardly upholds a states right to disenfranchise felons. For the most part, the
Court will only deem a law suspect if the population in question meets a series of criteria
know as the Traditional Indicia of Suspectness. If this happens, then there are two
levels of heightened scrutiny: intermediate scrutiny and strict scrutiny; however, it is very
difficult to be awarded suspect status because the Indicia are so confusing and muddled
(Geiger 2006, 1206-7). Now that this a bit more clear, I will explore if felons could be
62


considered a suspect class.
Are Felons a Suspect Class?
At the current moment, felons are not considered a suspect class, but the Supreme
Court has struck down some civil disabilities for being vague, inconsistent, blocking
rehabilitation, or blanket banning felons from public employment (Geiger 2006, 1215).
While there is hope for the future, generally, the Court does not strike these laws or cases
down as discussed in the last section. For the most part, the Court generally upholds laws
that are aimed at a certain type of offender or offers some governmental benefit, citing
the safety and security of the people and the state (Geiger 2006, 1215-6). And in the
unusual cases in which the Court has struck down a tailored collateral consequence
through rational review, the criminal conviction is often, but not always, minor,
nonexistent, or old (Geiger 2006, 1216). And as Geiger points out, it is pretty obvious
that these cases suggest that courts rarely depart from true rational-basis review despite
current equal-protection doctrine (2006, 1216). The more common response is that
collateral consequences are either thought to be assumed as a ramification of a
sentencealbeit separate and civilly imposedand therefore incontestable or are seen as
outside the jurisdiction of the court because they are social, economic, or private matters
rather than legal matters. For instance, until 2010 (.Padilla), the Court repeatedly decided
that deportation is a collateral consequence of conviction and not a direct consequence;
therefore, the defendant did not have to be made aware that they would most likely be
deported before making a guilty plea in order to do so willingly and knowingly. Geiger
argues that civil disabilities (1) can be shown to often be wrongful discrimination, (2)
affect many facets of a felons life forever, and as a whole (3) become many differing
63


shades of civil death. However, the Court has yet to think that civil disabilities as a whole
are an issue worth defendingeven for fundamental rights like full disenfranchisement,
which they argued was justified in Richardson v. Ramirez (1974) by stating that the intent
of the authors of the Fourteenth Amendment was to allow states to ban felons from being
able to vote if they wanted to (Geiger 2006, 1217). Now, I detail Geigers case for why
felons should be considered a suspect class. There are four major areas necessary for a
group to be declared a suspect status: immutability, history of class-based discrimination,
political powerlessness, and inherent suspicion. The following sections will discuss each
one and explain why felon should be considered a suspect status.
Is a Felony Immutable?
Immutability describes a trait that is impossible or at least extremely difficult to
alter. The harder it is to escape these traits, the more significant the discrimination faced.
If a person can easily exit a discriminated against group, it is hard to make the case that
their discrimination is significant. For example, if a student is being bullied for being
gothic, they could simply depart the subculture and alleviate their discrimination. While
one could make the argument that people have the right to free expression or are bom
gothic, this is beyond the scope of this discussion and a more abstract level of freedom
than argued for herein. In many of the cases of Equal Protection, the immutable traits are
traits people are born with and cannot change like race, nationality, ethnicity, or gender.
However, some immutable traits can change: aliens can naturalize or leave, illegitimate
children can be adopted or legally acknowledged, people can change sex or gender, and
science has proven that race is actually socially constructed because the differences
amount to skin pigment and facial structure (therefore, society could change that as well).
64


All of which begs the significance of immutability qua unalterability (Geiger 2006,
1212). Given this, the Court has created criteria from which to judge if a specific case
ought to be scrutinized. There are four areas that are scrutinized if a law is about an
immutable trait: relation to accidents of birth, relationship to individual responsibility,
direct correlation between law/judgment in question and individual ability, and a history
of class-based discrimination (Geiger 2006, 1211). The following will explain each one
except for a history of class-based discrimination: it is covered in the next section.
Accidents of Birth. Many immutable traits are accidents of birth and to
discriminate based solely on birth with a certain trait is unfair. One of the first discussions
of immutability arose in Frontiero v. Richardson (1973). To say that a wife is not entitled
to military dependent spouse benefits for her dependent husband is to violate the norms
of fairness in a way that reifies previous gender stereotypes because a woman should be
treated equally to men who are entitled to benefits for their dependent wivesthe
breadwinner is the breadwinner regardless of sex (Geiger 2006, 1211). But this is not to
say that immutable traits are always something you are bom with, but rather that
discrimination made upon accidents of birth are more likely to be irrelevant to the legal
burdens based upon them (Geiger 2006, 1224). Not all immutable traits are accidents of
birth: for instance, religious affiliation is a suspect class. Joining the class at birth is not
necessarily a requirement for suspect status. The experience of the traits needs to just be
sufficiently unalterable to create a real barrier to exit from the class (Geiger 2006,
1218).
Relevance to Individual Responsibility. Second, Geiger writes, The argument
that lawbreakers deserve whatever punishment they get, whenever they get it, for no
65


other reason than that they broke the law is perverse and simplistic (2006, 1221). There
is no one-size-fits-all model for punishment (otherwise, there would be little need for the
criminal justice system as it currently exists): responsibility varies from crime to crime
among ex-offenders just as sentences do. Further, breaking the law does not justify
perpetual punishment in all or even most casesand in those cases that it does, the
criminal justice system itself is able to handle that with life sentences or the death
penalty. In Weber v. Aetna Casualty & Surety Co. (1972), which decided that legal
burdens must bear relationship to individual responsibility, not just be from an accident
of birth. In Weber and the similar Plyler v. Doe (1982), the Court decided that it was
unconstitutional to deny an illegitimate child workers compensation benefits from a dead
father and that Texas schools cannot exclude illegitimate children. Children do not
choose their parents and thus should not be given legal burdens for something they are
not responsible for. Geiger writes, this would violate the basic concept of our system
that legal burdens should bear some relationship to individual responsibility (2006,
1210).
But what about civil disabilities? What is the relevance to individual
responsibility of civil disabilities? Civil disabilities often have little connection to an
individual ex-offenders individual responsibility. For instance, someone convicted of a
felony drug possession would have the same amount of civil disabilities as a person
convicted of grand theft, murder, manslaughter, rape, or child molestation (sans the sex
offender registry for the latter two and the extra disabilities around government benefits
for the drug offender). There are two reasons that the legal burdens of civil disabilities
have little to do with individual responsibility for ex-offenders: (1) the criminal justice
66


system assesses and punishes for the crime and the persons individual responsibility for
it with the specific sentence and (2) felons vary greatly in their moral blameworthiness
even across crimes (e.g., the moral blameworthiness of someone who shoplifts for fun vs.
someone shoplifting a loaf of bread to feed their family).
Individual Responsibility for Crimes is Assessed Through the Criminal Justice
System. The irony of the whole institution of civil disabilities is that by the criminal
justice systems own standards, a felon, as an ex-offender, is done: they have paid their
debt to society, which is why they are ex-offenders! Furthermore, civil disabilities
poorly serve the penological goals of deterrence, denunciation, retribution,
rehabilitation, and incapacitation (Geiger 2006, 1220). Similarly, civil disabilities have
limited value as a deterrent because as I wrote above, most people are not aware of them
or their consequences before sentencing. And after sentencing, they make it difficult for
felons to acclimate to life on the outside, which defeats their purpose(s) (other than
perpetual punishment) by creating conditions that foster recidivism and thus, crime.
Further, civil disabilities do little to stop repeat offenders because they are neither
deterred, nor stopped from committing crimes by civil disabilities when free. In the best
case argument for them, civil disabilities as a whole may lower specific crime rates (e.g.,
pedophilia) in areas that need to be protected like schools, jobsites, public housing, etc.
by not allowing felons to join those communities and have easy access to recidivate;
however, only at the expense of denying other felons many opportunities to reclaim their
citizenship and place in their communities through jobs, housing options, voting joining
the military, being union leadership, participating in non-familial childcare or teaching,
etc. This permanent othering and inability to fully re-enter society blocks a felons ability
67


to become a whole person again, increases crime and recidivism, and hinders the full
expressions of freedoms this country purports to offer to its citizens.
Bill Of Attainder. The U.S. Constitution has a prohibition against bills of attainder
(laws that inflict punishment without a judicial trial), stating that punishment be given
through the criminal justice system, with its attendant protections of right to counsel,
trial by jury, and due process standards (Geiger 2006, 1220). In fact, this goes along
with the Framers intent that the Legislative branch does not have the ability to rule
upon the blameworthiness, of or to punish people (Geiger 2006, 1221). In United States
v. Brown (1965), The Court writes that, the Bill of Attainder Clause ... reflected the
Framers belief that the Legislative Branch is not so well suited ... to the task of ruling
upon the blameworthiness, of, and levying appropriate punishment upon, specific
persons (Geiger 2006, 1221). The judges quotes Alexander Hamilton,
nothing is more common than for a free people, in times of heat and violence, to
gratify momentary passions, by letting into the government principles and
precedents which afterwards prove fatal to themselves. Of this kind is the doctrine
of disqualification, disfranchisement, and banishment by acts of the legislature....
If the legislature can disfranchise any number of citizens at pleasure by general
descriptions ... if it may banish at discretion all those whom particular
circumstances render obnoxious, without hearing or trial, no man can be safe....
The name of liberty applied to such a government, would be a mockery of
common sense, (quoted in Geiger 2006, 1221)
How interesting would it be if this founder fathers intent never to disenfranchise were
heard in Richardson v. Ramirez (1973)? Would it have changed the outcome of that case?
Further, from a legal perspective, anti-crime legislation is almost always set up as a
reaction to gruesome crimes; however, civil disabilities are often a poor way to do this
because they are immoral, ineffective as a deterrent, give the Legislative branch Judicial
powers, are a poor way to judge character or individual responsibility, and should be used
68


to give anyone more legal burdens only in very rare circumstances (Geiger 2006, 1221).
Ex-Offenders Exhibit Tremendous Variability in Moral Blameworthiness. There
are only two reasons to consider that ex-offenders would have any further responsibility
for their crimes after finishing their sentences and those are (1) further retribution is
necessary (but why not incarcerate them or keep them on probation or parole longer?)
and (2) there is a need for public safety because of incomplete rehabilitation; however, as
mentioned above, civil disabilities are applied unequally, which means that they punish
people who are not fully deserving of some or all of the punishments. This continual
punishment may paradoxically increase risks to the publics safety by creating a situation
in which felons are more likely to commit crimes because of lack of legal opportunities
for them (Geiger 2006, 1222). This implores one to ask the question, do civil disabilities
protect society? 76.6% of prisoners recidivate within five years of release, 43.4% by the
end of the first year (Ei.S. Bureau of Justice Statistics 2014, 8). Is this because criminals
are mostly bad people or is this because there is such a lack of legal opportunities for
them to live a normal life? A study shows that over five years property offenders (82.1%)
and drug offenders (76.9%) were the most likely to recidivate (violent offenders
recidivate at 71.3% and public orderlike guns and DETsrecidivate at 73.6%),
reinforcing this idea that criminality arises from lack of opportunity more often than not
(EI.S. Bureau of Justice Statistics 2014, 8). It seems as if there is a definite correlation
between criminal conviction and being caught doing criminal activities again; however,
property and drug offenders commit crimes at a higher rate likely because they are crimes
committed to make an income. Further, as many studies have shown,
finding steady, quality employment is one of the strongest predictors of desistence
from crime, and yet incarceration itself reduces opportunities for ex-offenders to
69


find work. This vicious cycle suggests that current crime control policies may
in fact exacerbate the very conditions that lead to crime in the first place. (Pager
2007, 160)
This reminds one to look at the context: criminal activity does not happen within a
vacuum, but within a larger system. Geiger writes,
if we throw out the two extreme determinist positionsthat criminals are
incorrigibly evil on one end and are totally determined by their surroundings on
the otherwe are left with the reasonable scenario of a group of people more and
less culpable, more and less able to return to productive social roles, and more and
less likely to recidivate. (2006, 1222)
In other words, Geiger recommends that if one were to consider that, like almost all
binary options, most people lie in the middle of this belief spectrum rather than on the
fringes, one would have a better understanding of the realities of criminal justice.
However, there is another issue for this case: the relevance-to-individual-responsibility
strand of immutability: are felons responsible for civil disabilities?
The Relevance-to-Individual-Responsibility Strand of Immutability. While a felon
is a felon for breaking the law, their responsibility is variable depending on the crime,
intentions, effects, etc. But the moral blameworthiness seemingly linked to a felon is the
problem: The relevance-to-individual-responsibility strand of immutability creates a
doctrinal problem... it imports into the suspectness inquiry the case-by-case equal-
protection inquiry itself, collapsing what should be a two-stage review (Geiger 2006,
1222). Meaning that what should just be a two-step review for suspect status becomes a
more convoluted problem. There are two reasons for this. First, heightened scrutiny is the
only way in which a judicial review could find social or economic discrimination. Until a
group is seen as worthy of heightened scrutiny, they cannot be considered a suspect class.
Second, the relevance-to-individual-responsibility strand of immutability declares that
70


judges must find ex ante that members of a certain group or class deserve to be singled
out for their affiliation with this class or group before heightened scrutiny can come into
effect. The latter is troublesome because, as with felons, if a group is deemed dangerous
in our society, it is not a far stretch for the courts to easily determine that entire group to
be dangerous. For instance, in Korematsu v. The United States (1944), the court found
little problem with the Japanese (even American citizens) internment camps in the U.S. in
the 20th century even though the Bill of Attainder clause prevents retribution against a
whole class of people (Geiger 2006, 1223-4). Though there is still hope in this section
through group-burden relevance because if a group faces an unfair burden of social and
economic discrimination just for being part of a group, then heightened scrutiny can be
applied to them (Geiger 2006, 1223). Many of the social and economic discriminations
facing people with criminal records are easily arguable as invidious discrimination;
therefore, those with records should be afforded heightened scrutiny. But, as Geiger
notes, until the Court analyzes group-burden relevance with an eye for social and
economic discrimination, the judiciary will be blind to the pervasive discrimination
against ex-offenders and never turn on the heightened scrutiny necessary to detect it in
individual cases (2006, 1223). However, this creates a catch-22 because the Court has to
decide that the laws that discriminate against those with records have no relevance to
status of ex-offenders. Therefore, if the Court never makes a stand, it is almost the same
as saying that felon discrimination is okay because it creates the same result: a
continuation of the wrongful discrimination facing felons.
But there are two answers to this. First, is to offer individual sentences of civil
disabilities. This is sometimes deemed cost prohibitive, but since a judge sentences
71


everyone with a criminal record anyway, why not decide each set of disabilities or
protections? The second answer is to give the whole class of felons, with certain
exceptions, suspect status. With just one law, this might happen with a little effort;
however, to get the entire case for suspect status heard relies on the current public belief
about the criminal, which is inherently negative, to change. This will be an uphill battle
because In the public eye, the generic criminal is likely to be the worst kind, and
deserving legislative sanction (Geiger 2006, 1223). Given this understanding of the
criminal in the public eye, there is a rather clear connection for most people
unconsciously between someones criminal history, their culpability, and their legal
burdens as previously argued. This belief is also seen in the Supreme Court because, as
Geiger writes,
the current suspectness inquiry holds that criminal histories create a nearly
automatic correspondence between ex-offenders responsibility and legal burdens
necessarily rests on this faulty generic view. The relevance-to-individual
responsibility strand of immutability glosses over the question at the heart of
equal-protection analysis and turns a valuable protection of individual rights into
an echo of stereotype. (2006, 1223)
To sum up this section on individual responsibility, Geiger writes, The retributive
justification for ex-offenders' residual responsibility cannot justify application of
collateral consequences to all ex-offenders any more than retribution justifies application
of a single sentence against all convicted criminals (2006, 1224). And that is exactly the
point: blanket discrimination against felons is extremely unfair because it assumes
equivalent harm and culpability in every case, which is an unrealistic view.
Irrelevance to Individual Ability, Impermeability & Immutability. The third
way to determine immutability is that immutable traits often have no direct correlation to
ability to help society, to work, or to be in control of their own lives. Frontiero v.
72


Richardson (1973) established that sex has no relation to ability to perform or contribute
to society; therefore, to consider all women legally inferior is invidious discrimination
(Geiger 2006, 1210). People with criminal records have no significant barrierother than
law and societal biasto living and adding value to a community. Like everyone else,
they have many skills and some shortcomings; however, this does not stop them from
working, having relationships, doing volunteer work, starting businesses, raising children,
etc., being part of the community at large.
To sum up this section on immutability, it should be noted that Frontiero (1973)
suggests immutability plus an additional objection. It may be best to think of this as
immutability plus a so what? Why should someone or the government care enough to
make specific legislation or social change for this group? For instance, the Court argued
in Massachusetts Board of Retirement v. Murgia (1976) that age is not a suspect class
because age happens to everyone. In other words, age is a condition shared by all living
things: if a person lives, they will age; therefore, the aged are not a special class worthy
of suspect status (Geiger 2006, 1212). Another approach to this argument is that the
elderly are also a secondary protected class due to federal statutes about age-based
discrimination. This is to say that because we all age, age is not a suspect class, but we
still cannot be discriminated against for it because that too is wrongjust this wrongness
is based on something other than suspect status. However, because only some of the
population will be felons, the designation is for life, and there are laws specifically
discriminating against felons, I can ask the question, is having a felony immutable?
Yes, because while one is not born a felon, given current American jurisprudence,
criminal records are immutable because criminal records last for life, are easily
73


accessible, and running background checks is increasingly common and easy. As Geiger
points out, the ex-offender class is legally structured and
since the ex-offender class depends on government action for its creation and
existence, government policy determines the class's immutability. Thirty-two
states currently allow ex-offenders no opportunity to clean up their criminal
convictions. In the eighteen that allow some opportunity, convictions can be
altered, ameliorated, and in rare instances erased altogether. (2006, 1218)
In other words, the amount of wrongful discrimination that happens to felons and the
limited ability to escape it is government constituted and controlled. This is a government
issue. Also, something Geiger does not mention directly, but points at is that time itself is
an immutable trait because no one can change the past: it is there to stay. And being as
state and federal governments maintain massive databases of the past of certain peoples
behavior (for example, criminal records), the past is literally inescapable for a felon
because it is the permanent record of ones character. Whereas everyone else is given
the opportunity to make mistakes, learn, and grow, the past really can (and often does)
catch up to a felon and drastically limits their possibilities regardless of whether or not
the charge (from anywhere in their life) says anything about the person that they are
today and how good of an employee, gun owner, lessee, licensee, tenant, or any number
of other things for which someones character comes into question they are. It is
intriguing to think about the impact of holding a mistake over someones head for life.
What if everyones mistakes were often used as excuses not to allow them to do things?
What if all people were constantly limited by their mistakes instead of being allowed
opportunity for growth? Finally, it is sometimes thought that a record can eventually be
sealed or expunged, but it is rarely so simple. While some states allow people with
criminal records to alter, ameliorate, or erase them, this does not mean that the class of
74


offenders is easily changeablein fact, this points out how hard it is to get out of this
class. Or as Geiger writes about California, a state offering some alterations of criminal
records, Most alterations of criminal records in California, including even the
gubernatorial pardon, do not erase a criminal record altogether and therefore allow an
investigating party to view the underlying conviction (2006, 1218). Currently, few states
allow cleaning up these records completely and the few that do usually make it a large
hurdle of time, effort, and money, as a lawyer, paperwork, and a trial are often required.
Meaning that further, it is a speculative enterprise and no one is guaranteed relief from
their disabilities. Therefore, the class of ex-offender is incredibly difficult for most felons
to leavequalifying felons for immutability (Geiger 2006, 1219). Geiger sums up the
case for immutability succinctly:
Substantial barriers to exit from the class of ex-offenders, the lack of significant
relevance between ex-offenders' criminal histories and their individual
responsibility, and the impermeability of the class all support the conclusion that
ex-offenders are an immutable class. (2006, 1224-5)
Do Felons Have a History of Class-Based Discrimination?
The next trait that the Supreme Court looks at in order to determine suspect status
is a history of class-based discrimination. This criterion is rather straightforward: can a
rational case be made that there is a history of class-based discrimination against a
specific class? Frontiero v. Richardson (1973) also establishes the indicia of a history of
class-based discrimination. The Court decided that U.S. Military benefits cannot be doled
out differentially to men and women, citing that women have a history of gender
discrimination which, in practical effect, put women, not on a pedestal, but in a cage
and is similar enough to the discriminations facing black slaves before the Civil War
(such as being unable to bring suits in their names, hold office, sit on a jury, own
75


property, vote, etc.) to be seen as prejudicial (Geiger 2006, 1210). However, the Supreme
Court does sometimes decide that groups are not protected classes, citing that there is not
a history of class-based discrimination (among other reasons). For instance, in the Great
horrible case San Antonio v. Rodriguez (1973), the court argued that distributing school
funding differentially to rich and poor schools is legally valid because social class (i.e.,
poverty) is not a protected class (Geiger 2006, 1212). In other words, being poor is not a
suspect class. They argue that social mobility is possible; therefore, poverty is not
immutable because it can be changed (presumably with hard work, education, and a bit of
luck) (Geiger 2006, 1212).
The case is a bit different for felons: there is a clear history of class-based
discrimination which most people think or thought was good. As will be discussed in
more detail in Chapter Five, civil disabilities are a variant of civil death, a tradition that
has existed since sacer homo in Ancient Rome. This death is variable depending on the
other circumstances of the felons life; however, there are still a vast amount of
restrictions for even those felons lucky enough to become highly successful to contend
with. This discrimination is implicit in U.S. law and carried over from British Common
Law. Ironically, U.S. law currently is far more stringent than the U.K., which got rid of
the label of felon in the 1960s. Meaning that felons have a history of class-based
discrimination going all the way back to the Middle Ages and maybe even Rome! As
Geiger points out in a quote from Frontiero (1973),
Neither slaves nor women could hold office, serve on juries, or bring suit in their
own names, and married women traditionally were denied the legal capacity to
hold or convey property or to serve as legal guardians of their own children.
Each of these restrictions on legal status has also been or continues to be imposed
upon ex-offenders. (2006, 1225)
76


And what is interesting is that while few people today would hold the position that blacks
or women should be denied these rights, many people are fine with felons being denied
these rights as part of a perpetual punishment for crimes they have committed.
Are Felons Politically Powerless?
The next question the Supreme Court asks in relation to suspect status is, Is the
group in question politically powerless? However, as with the other criteria, political
powerlessness is a gradient and not a clear-cut yes or no. It can only be decided under
strict scrutiny. This notion of political powerlessness comes from paragraph three of
footnote four in United States v. Carotene Products (1938), which suggests that
government prejudice against discrete and insular minorities ... tends seriously to
curtail the operation of those political processes ordinarily to be relied upon to protect
minorities (Geiger 2006, 1213). However, the Court can deny groups suspect status for
this exact reason. It denied suspect status to conscientious objectors because they had
been given a break by being allowed not to serve in combat [for instance, in Johnson v.
Robison (1974)] and thus, are not a politically powerless discrete, insular minority, nor
have they experienced discriminationrather, they have been given special privilege
already (Geiger 2006, 1213). Being mentally handicapped is not a suspect class because
lawmakers already make adjustments for the handicapped [for example, City of Cleburne
v. Cleburne Living Center (1985)] (Geiger 2006, 1213). Because of this, there are some
c///av/-suspect classes, for instance women. Women are half of the population and not out
of the thoughts of the legislature in the ways that a minority group like the Amish would
be; however, Frontiero argues that women count as politically powerless because there
are few women in many decision making councils, and thus, their political will is often
77


filtered through men who may or may not act in the ways that a woman would or in a
way that is fair to the wants and needs of the women in our society (Geiger 2006, 1214;
Frontiero). This leads one to something interestingand something in line with Ely (see
the next chapter on discrimination): the real issue with political powerlessness is the
extent to which the class is unable to permeate the governmental structures either by
becoming an official or affecting policy by having their voice and positions thoughtfully
considered. And if a groups positions are not considered, they may experience undue
discriminations out of the ignorance or malice of those in power.
Impermeability. Impermeability is the idea that the suspect class in question is at
a remove from the main legislative body and thus, the laws of the society are made
without taking their position into question. Legal scholar John Hart Ely calls this the we-
they divide. As will be discussed in Chapter Four, the heart of Elys argument about
discrimination is that discrimination happens when the laws are disproportionately unfair
to an entire class of people. Members of the government are rarely from marginalized
classes, meaning that the government can be hostile or unaware of the problems faced by
any minority group. This is problematic because as Geiger writes, societal distance
increases the likelihood that legislators will act prejudicially against these groups out of
hostility or undervaluation of harm suffered by these groups for the simple reason that
self-serving and other-harming legislation will never hurt the legislators (2006, 1211-
12). This applies to ex-offenders as well as a class; however, with felons, this problem is
often multiplied because a disproportionately high number of people with records also
belong to many other marginalized groups such as the poor; blacks; Mexicans; natives;
and people with mental health issues or drug addictions. For instance, a 2013 study shows
78


that On December 31, 2013, about 37% of imprisoned males were black, 32% were
white, and 22% were Hispanic. Among females in state or federal prison at year end
2013, 49% were white, compared to 22% who were black and 17% who were Hispanic
(U.S. Bureau of Justice Statistics 2014, 8). The 2010 Census data shows similar numbers,
39% white, 19% Hispanic, and 40% black. At first, this does not seem like a big issue
until you take into account that whites are 64% of the population whereas Hispanics are
16% and blacks are 13%. This means that that about .04% of whites are currently
imprisoned compared to .08% of Hispanics and 2% of blacks (Sakala 2014). In other
words, Hispanics are twice as likely as whites to go to prison and blacks are five times as
likely. And when one figures in the amount of time that mass incarceration for drugs has
been in effectalmost fifty years (since 1971)this just reifies what so many already
know: black people are highly likely to have a criminal record, especially black men. But
what are the real statistics? Pager writes,
African Americans ... compris(e) more than 40 percent of the current prison
population while making up just 12 percent of the U.S. population. At any given
time, roughly 12 percent of all young black men between the ages of twenty-five
and twenty-nine are behind bars, compared to less than 2 percent of white men in
the same age group; roughly a third are under criminal justice supervision. (2007,
3)
This means that while there is a large population of people who are at one+ remove (one
+ step away) from the governing body because of a felony, many of those felons are at
two+ removes away from government officials considering the overwhelmingly racial
face of people with criminal records. This means that a vast gulf exists between most
lawmakers and people with criminal records. Summing this up succinctly Geiger writes,
where such a gulf exists, legislators are less likely to consider that legislation
creating a we-they divide would ever apply to themselves or their loved ones or
that the impact of collateral consequences on the ability of ex-offenders to
79


reintegrate into society could be devastating. The class of ex-offenders is
functionally, if not actually, impermeable. (2006, 1224)
As long as that is the case, felons will find it difficult to reenter society, which likely has
much to do with why the U.S. is currently facing a recidivism rate over 70%.
Discrete and Insular Minority. As Geiger points out, The normal inquiry into a
group's political powerlessness turns on whether that group is a discrete and insular
minority (2006, 1225). To explain this, I must break down what is discrete and what
is insular in order to argue whether or not felons are both or either.
Discrete. Geiger offers two criteria for determining if a minority is a discrete
minority. First, discrete minorities are easy to target/identify, which makes them an easy
target for discrimination. Second, discrete minorities are easy to avoid getting to know
thus reinforcing the effects of impermeability of a suspect class (2006, 1226). There are
three ways in which discreteness can be shown: first is documentation and legitimacy.
While a felon may not have any immediate characteristics that identify them as a discrete
minority, documentation can easily and quickly betray this information. This is similar to
non-citizens and legitimacy claims. Or as Geiger writes,
while aliens and children of non-married parents may be physically
indistinguishable from the rest of society in daily life, in moments where
documentation of citizenship (as in voting) or legitimacy (as in probate cases) is
necessary, these groups are readily identifiable. (2006, 1226)
And this exact issue is a major facet of the case for felons as a suspect status because civil
disability is in many ways in the documentation. Because of the advances in information
sharing technology, felons are more readily and quickly identifiable by what Geiger calls
their digital scarlet letter. Through simple, cheap background checks, almost anyone
can find out who has a criminal record and for whatallowing discrimination to happen
80


nearly effortlessly (Geiger 2006, 1226). Second, because felon is a category constituted
through law, ex-offenders are facially indistinguishable. Meaning that anyone can be a
felon in the same way that a fully naturalized alien can seem like an American-born
citizen. This is good because it can allow a felon to pass as a non-felon easily; however,
given the simplicity and ubiquity of running a background check, it is often a short-lived
passing. Because the media, politicians, and culture demonize the identity of criminals,
one cannot tell stereotype from reality, which creates a situation in which the identity of
the criminal is mostly in ones own mind and not in the concrete situation of any one
given criminal. Geiger writes, Physical indistinguishability of feared minorities, in other
words, can serve a similar alienating function as segregation of racial or ethnic
minorities (2006, 1227). Further, because of the legality in the documentation, ex-
offenders, aliens and illegitimates are ultimately distinguishable during key moments of
opportunity for prejudicial action, the mechanism for discrimination is fully available
(Geiger 2006, 1227).
The third way in which discrete minority status can show is being facially
discrete. Facially discrete minorities cannot hide or pass because anyone can see their
minority by looking at them (for instance, gender or race). The benefit is that facially
discrete minorities cannot help but be seen and thus often have an easier time gaining
space in the political and cultural sphere because they must be dealt with as they cannot
pass and have no choice but to express and explore their political identities; however, as
the last decade of Islamophobia has shown, the downsides of being facially discrete is
that a person in this kind of minority is an easy target for discrimination because of
exactly this same reason: passing is nearly impossible. The confusion and mystery
81


surrounding these cultures often also means that it is also easy to have cultural identity
subverted and misused in a way similar to a facially indistinguishable minority (Geiger
2006, 1227). And while felons are not generally facially discrete (unless they have prison
tattoos or something like that), they are easily distinguishable for discriminatory purposes
based off of background checks and thus, are a discrete minority. This is shown in the
media portrayal of dangerous felonsparticularly the discourse against drug dealers as
merchants of death when they account for a far smaller portion of the U.S. deaths and
disease than tobacco, prescription drugs, or car crashes individually. For instance, Geiger
writes that
the medias coverage of crime leads to disproportionate fear of crime and
criminals, and, by association, ex-offenders. Reports on crime make up one-third
of late night news programs, in part because these stories are cheap, simple to film
and easy to produce. Similarly, 4% of mortality-related news was devoted to
tobacco in 1990 while 19% of deaths that year were actually attributed to tobacco;
in contrast 16% of mortality-related news was devoted to drugs and only 1% of
the deaths were actually attributed to illicit drugs. (2006, 1198)
While it may seem that things have changed since the 1990s or that this information is
old, something to keep in mind is that many of the policies discussed in this thesis are
from the 1990s and exactly the ideological climate that Geiger is talking about. So, while
things may be a bit different now, the U.S. is still reeling from the laws passed in this
rather recent time period. Likewise, in 2014, there were over 47,000 deaths from drug
overdoses, an increase from the previous years because of a doubling in the amount of
prescription opiate deaths (from around 3,000 to 5,500) and a twenty-six percent increase
in heroin-related deaths, raising the figure for heroin to 10,574 (Centers for Disease
Control and Prevention 2015). While this is a high number of preventable deaths, alcohol
alone is responsible for 88,000 deaths from 2006-2010 (around 22,000 a year) (Centers
82


for Disease Control and Prevention 2014). And of course, cigarettes cause around
480,000 deaths a year, including around 41,000 deaths from secondhand smoke due to
lung cancer or heart disease (Centers for Disease Control and Prevention 2016). Yet,
neither receive anywhere near the negative assessments as or criminality of being a
merchant of death that those involved with illegal drugs do.
Insular. Insular groups often interact together, for instance, a close-knit minority
religious or ethnic community; therefore, they are also more likely to or much easier to
organize into a political lobby than diffuse groups. However, insularity is not necessary
for suspect status as other suspect classes lack insularity. For instance, illegitimate
children (illegitimates) are not insular, but are still a quasi-suspect class (Geiger 2006,
1228). What is interesting about felons is that in some ways they can be considered
insular, but in others they would not be considered insular. First, prisoners are not insular
in the classic way: in prison, prisoners are an insular minority; however, this is in many
ways because of incarceration itself and not because of an inherent insularity in prison
populations. They are forced to be insular. It is true, often prisoners are parts of specific
minority communities; however, this insularity is before, beyond, and mostly unrelated to
a prison-based insularity. Further, as people exit prison, they do what they can to return to
their previous roles as
members of various racial, ethnic, religious, local, regional, political, and familial
communities. Rather than find community in their identity as ex-felons or
misdemeanants, ex-offenders try as quickly as possible to shed this identity and
reestablish former identities or move ahead to new ones. (Geiger 2006, 1228)
This is to say that few people embrace the identity of a life-long criminal; rather, they
embrace being a parent, a religious member, a worker, or something about life on the
outside. However, being a felon is a type of insularity if also considering how many
83


people think of prisoners and criminals as a large network of bad people. In other words,
being a felon is a type of insularity in many peoples minds because of media portrayals
and misunderstandings of criminals and criminality. For instance, all the fears of the
insularity of criminalslearning more criminal activities, scheming, creating criminal
networks, meeting other criminals, etc.are actually more likely in a prison environment
because of the clustering of the prisoners together (Geiger 2006, 1228). But this too in
many ways is a myth as (1) many people just want to get through prison and try to move
on with their lives and (2) it is not as if there is a real criminal underground that is fully
interconnecting all criminals: criminality is its own insularity within which there are
many other pockets of insularity (even in mafia media fantasies the mafias exist in
families) constituting the whole of criminality. The insularity of criminality is like the
insularity of any other enterprise: the people who know about it know it and they hear
about it how they hear about it. Involvement is purposely kept small to avoid detection
and mistakes, but spread far enough to anticipate success. There is no great god, teacher,
or prophet of criminality. Nor is there a race, ethnicity, spirituality, region, political party,
etc. dedicated to criminality (with rare, obscure exceptions). Those that recidivate do so
mostly as a response to existential or sociological conditions that are a product of the
environments they are in and the conditions of being a felon. Of course, active criminal
should not be a suspect status under equal protection as there is a reason for the suspect
status of active criminals to be treated with heightened scrutiny by the police as long as
our current judicial system exists. It is proper for police to seek out active criminals. But
felons, ex-convicts, as a group should not be punished for their deeds forever: once their
sentence is completed, they should be considered a full citizen again. Because of the
84


decline of the rehabilitation model, the strength of the model that prisoners cannot be
saved, and the diffuseness of the population of felons who are able to pass, felons are a
greater object of fear because many people do not know (or do not know that they know)
any felons other than through media portrayals and the fear of criminals in our cultural
imagination. Geiger writes that,
a group that is widely distributed throughout society rather than concentrated in
one enclave can be more threatening. While incarceration by design protects
society by isolating and removing dangerous people from society, once ex-
offenders are released, they re-enter society. (2006, 1228)
Sadly, because the U.S. has given up rehabilitation as a penological goal, this seems to be
the best conclusion: Since on the one hand we cannot justify permanent incarceration
and on the other we no longer believe criminals who serve their time are rehabilitated, we
logically believe that by freeing the incarcerated we are releasing criminality in our
midst (Geiger 2006, 1228). This is often enflamed by the media. The fear around sex
offenders in general is a perfect example of this. For the most part, our society sees sex
offenders as people who are permanently unsafe and irredeemable. Yet, this could not be
further from the truth: 19/20 sex offenders do not reoffend within three years of arrest
(Geiger 2006, 1229). This is far and away the lowest rate of recidivism among any type
of offender: two-thirds lower than the all crimes average of 76.6% (U.S. Bureau of
Justice Statistics 2014, 8). And as Geiger quotes from a U.S. DOJ report, re-arrest rates
of child molesters are even lower than those of other sex-offenders (U.S. Bureau of
Justice Statistics 2003; 2006, 1229). Something one would never learn from media
reports! This attack on sex offenders for life is a part of a segregationist instinct toward
anyone with criminal thinking:
The demand for publicly available sex offender registries reflects the public's
85


desire to unmask the anonymous, to locate exactly where, in their midst, hidden
threats reside and then socially isolate them within communities. Diffuseness and
insularity of highly stigmatized groups are two sides of the same segregationist
instinct. (Geiger 2006, 1229)
It is interesting how the statistics compare to the media and common portrayals of
criminality, which then reify their positionseven if it can be easily argued that these
portrayals and their ramifications (e.g., civil disability) are the reason for such high
recidivism.
To sum up this section on political powerlessness, I can say that felons deserve
heightened scrutiny because their criminal records create a situation in which they have a
harder time achieving political power or adequate representation. And that their
diffuseness makes it not only harder for them to achieve equality, but makes them easier
targets for discrimination because there is no felon party or pro-felon politicians and just
a few lobbying organizations actively fighting laws on behalf of felons. At the moment,
the situation is such that the political majority can easily ignore the rights and concerns of
felons while easily justifying the current and further discrimination with a nod toward the
safety of the other constituents. Due to all of this discrimination, it is difficult for felons
to reach any kind of serious power under our current system, as any push by felons would
very likely be received with ridicule, fear, and hostility.
Inherent Suspicion of the Classification
The final area of strict scrutiny, inherent suspicion, is somewhat nebulous. It is as
simple and as complicated as it seems: it is the rule that some classifications are
inherently suspicious. The paradigmatic case of inherent suspicion is race because there
are so few legitimate governmental purposes to base a law on race that any laws based on
race automatically warrant heightened scrutiny. But how does this relate to felons?
86


Obviously, people currently committing crimes, incarcerated, or on probation or parole
should be regulated in order to make sure that all the governmental interests are
addressed. Geiger writes, With so many important government interests at stake,
legislation targeting criminals is in a sense inherently unsuspicious (2006, 1229).
However, regulating felons is not the same thing because to regulate ex-offenders in the
same way is to argue that people should be punished forever. The idea only makes sense
under the penological model that says that felons can never be reformed and thus are
always criminals. But this is neither verifiable fact, nor a good argument. As argued
earlier, one can rather easily say that civil disabilities grossly add to the problem of
recidivism. And if treating felons this way is actually relevant to penological goals, then,
at least, as Geiger says, the government... should be forced to closely tailor its efforts to
concrete, verifiable goals (2006, 1230).
Felons Are a Suspect Class
Above, I wrote about the indicia of suspectness and argued that felons have all of
the indicia: being a felon is immutable, felons have a long history of class-based
discrimination, felons are politically powerless, and overall, there is an inherent suspicion
to laws blanket discriminating against felons (they could even easily be argued to be bills
of attainder). This being said, it is rather clear that felons deserve at least strict scrutiny to
determine whether they should be afforded quasi or full suspect status. Whether the
Supreme Court ever offers felons that opportunity, however, will be left up to time to tell.
The Other Option: A Call for Solidarity
In this section, I discuss what is commonly known as identity politics to see if
and how it could help felons. In other words, would it help felons to own the label
87


(create/reclaim the identity of felon) and collaborate to work on increasing personal
freedoms as a movement or are felons better off alone (trying to pass, hoping for the best,
working/living in areas/sectors that are more open to felons) given the above options?
The Politics of Passing
Identity politics is an approach to thinking about political arguments in relation to
identity. Specifically, it is the idea that felons could rally around the identity of felon and
use that rallying to spur political changes via work on laws and consciousness raising.
This is important for felons because, unlike many other discrete and insular minorities
who are instantly recognizable by their outward appearance, it is much easier for felons
to disperse and hide their identity. Due to this, there are incentives to passing for a
felon (acting as if they do not have a criminal record). However, passing is a game theory
level paradox: passing allows one person to maybe squeak through into good jobs and
housing that do not do extensive background checks or do small background checks, but
passing does not do anything to alter the situation for felons as a whole class of people.
And this is part of the issue: felons are a class of people created solely via legal
definition. Without the definition of felon being such that felons are able to occupy a
legal class that has limited enough rights to constitute being discriminated against, felons
would not be felons in a way that would be meaningful. In fact, the UK did away with
felonies in the late 60s and thus, they no longer have felonseven though they still have
courts, criminal charges, and sentences. And while it bothers some American
organizations focused on child abuse like the NSPCC, the European Union does not share
criminal records with the public because the EU Data Protection Act bans them as a
breach of personal privacy; therefore, the EU does not have sex offender registries or
88


databases of criminal records open to the public. In fact, the data from the European
Criminal Records Information System (ECRIS) is only available to prosecutors and
judges in order to have comprehensive information on the criminal history of persons
concerned and with the hope that they can prevent crime in general and stop repeat
criminals from escaping their records and thus, not being fairly punished for multiple
crimes (European Commission 2016).
Identity Politics and Felons
How exactly would identity politics help the situation of felons? Well, as
discussed previously, felons have little political power as a group and depending on their
state of conviction, may have no individual political power in that state at all. An
organized group of felons can work actively for felon rights by working to get legislation
passed or changed and to raise consciousness about the real variance in felons and the
difference between ex-offenders and people who are currently committing criminal
activity. While there are a few groups, mostly non-felons, who do work of this nature, it
is not the same as having a large, nationwide group of felons actively working for their
own civil rights. A group of felons working for their own rights would not only open
more space for felon rights, but would also put everyday people with felonies in the
spotlight so the populace at large could realize that felons are often not scary or
inherently criminal, but rather that they probably even know and like a felon or two. In
other words, like many other civil rights movements, felons need to actively promote
their cause to politicians and other people. Without getting other people on board,
nothing will change; however, if felons were to amass some political power, captivate the
minds of people in general, and gain some backing in state or federal government, then
89


many things could change. For instance, a nationwide group could begin pushing
different states to have easier expungement and sealing processes, make private
discrimination illegal, and even to gain federal suspect status for discrimination.
However, none of this will happen as long as individual felons opt to pass as non-felons
and there is no real push for solidarity or a large-scale political movement. (While there
may already be some groups, they are likely small: thus far, I have been unable to locate
a felon identity movement run by felons.) While lacking the space, an interested party
could take this further and ask, how could this solidarity be encouraged and facilitated?
Conclusion
In this chapter, I discussed the different ways in which felons could overcome or
remove their civil disabilities. While currently, there are few ways to do this and none of
them are simple, quick, or inexpensive, this does not preclude the future from finding
ways of alleviating the discrimination that felons faceparticularly with texts like this
one showing the blatant and vast levels of discrimination felons experience and the
difficulty of removing them. It is with this hope that I bring this section to an end. Now
that I have described what felons and civil disabilities are and how difficult it is to
remove them, I have enough information to ask two important questions: (1) are civil
disabilities wrongful discrimination? and (2) are civil disabilities equivalent to civil
death? These two questions will be the topic of the next two chapters respectively.
90


CHAPTER IV
ARE CIVIL DISABILITIES WRONGFUL DISCRIMINATION?
This chapter argues that, as a whole, collateral consequences/civil disabilities (all
the disabilities focused on individuals) are a form of invidious discrimination because
they are demeaning to felons. In this chapter, I discuss civil disability and offer an
argument for why civil disabilities are wrongful discrimination.
Discrimination: Is it Really Wrong to Discriminate?
Discrimination is not always wrongful. People have to discriminate to live. The
question of discrimination is not whether or not a distinction is drawn between people,
but whether or not that discrimination is wrongful: does the discrimination create a
blatantly unfair situation in which someone is looked upon as having a lesser humanity?
Does the discrimination demean them and make their life unnecessarily difficult? And the
most important question in this case is, is it always wrong to discriminate against a felon?
Overall, the answer is no. For instance, even though they have a very low recidivism rate,
if someone is convicted of pedophilia, then it is probably a good idea to prevent them
from any situation where they are in positions of authority over or often around children.
Intuitively, many people feel the same with someone who has committed treason to be
the president or someone who committed bank fraud to be a bank manager. But this
points out something larger: human beings often discriminate; however, in the interest of
fairness, we must have reasonable ways to make sure that we are only discriminating in
ways that are just. For this reason, one would probably not want to say that it is 100%
unjust to discriminate against any individual person. Rather, as people concerned with
91


equality, it is important to make sure that the criteria being used are fair and honest.
There is still a desire for a good, trustworthy employee, boss, friend, neighbor, romantic
or sexual partner, tenant, etc., but instead of thinking about qualities like race or gender,
we want to focus on a persons value within the situation we are assessing them for. But
then, the question becomes, when is it okay to discriminate against people? Is it fair to
blanket discriminate against large groups of people like felons? Rather than fixate on
these specific, anecdotal cases in which it would make simple sense to discriminate
against felons, we should ask the question, Is it wrong to blanket discriminate against all
people with felonies? This is similar to other civil rights movements: some people in all
demographics are problematic (and generally, the belief that many people in any group
are bad is more ideological or anecdotal than factual), but that does not mean that all of
them are; therefore, to judge all based on the actions of some (or pure ideology) is unjust.
With that in mind, in this section, I will discuss if discrimination is always wrong and
then tackle if/when discrimination is okay against felons.
Wrongful Discrimination: Is Discrimination Always Wrong?
Though I mentioned this above, it is worth reiterating: discrimination in itself is
amoral. We discriminate all the time and could not live without discrimination. When
discrimination is wrongful, then, it is problematic to society at large. Meaning the real
question here is, what is wrongful discrimination?
Fiss, Ely, and Heilman. There are two famous answers to these questions within
American legal theory from Owen Fiss (1976) and John Hart Ely (1980). Both argue that
the ideal of equality forbids discrimination that creates an unfair playing field for
individuals of certain communities, but they differ on how they understand equal
92


Full Text

PAGE 1

CIVIL MAIMING : AN INVESTIGATION OF A SOCIALLY SANCTIONED, ACCEPTABLE, AND RATIONAL DISCRIMINATION by JOSHUA HOWARD B.A., University of Colorado Denver 2011 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Humanities Humanities and Social Sciences 2016

PAGE 2

ii This thesis for the Master of Humanities degree by Joshua Howard has been approved for the Master of Humanities & Social Sciences Program by Omar Swartz Chair Sarah Tyson Jordan Hill Date: April 29 2016

PAGE 3

iii Howard, Joshua (M. H ., Humanities) Civil Disability: An Investigation of a Socially Sanctioned, Acceptable, a nd "Sensible" Discrimination Thesis directed by Associate Professor Omar Swartz ABSTRACT While most peop le know there are problems with and because of mass incarceration in the United States, many are unaware of the vast amount of legal liabilities facing felons after their sen tence. For instance, many people think that felons cannot vote but almost all of the states return this right after finishing a sentence (three do not); how ever, most people do not realize that felonies can prevent people from getting many jobs, significantly de lay or prevent attaining occupational licenses, and m ake renting property incredibly difficult I n this thesis, I explore the legal aspects of civil disability the legal limitations facing and restricting felons after finishing their sentences ( also referr ed to as collateral consequences or civil disabilities ) u sing content analysis and legal review In the process, I look at the ways a felon could escape civil disability throug h sealing, expungement, pardons, and possible future methods lik e Supreme Court interventions particularly the case for considering felons as a suspect class offered by Geiger I end by arguing that t he large network of civil disabilities are invidious discrimination under the models offered by Ely, Fiss, and Hellman and creates something like but not quite civil death for felons : civil maiming The form and content of this abstract are approved. I recommend its publication. Approved: Omar Swartz

PAGE 4

iv ACKNOWLEDGEMENTS I would like to thank Omar Swartz for closely working with me on this project and for reading and commenting on all of the drafts and text that did not make it into the final. This project would not be the same without you. Thank you to Sarah Tyson and Jordan Hill for all of yo ur feedback and guidance particularly at the last moment, when I needed it the most I truly appreciate the help, guidance, and feedback I received from all of you and could not have finished this thesis without it. Thank you all very much.

PAGE 5

v TABLE OF CONT ENTS CHAPTER !" FELONIES, CIVIL DISABILITIES, AND COLLATERAL CONSEQUENCES 1 # What is a Criminal Record? ................................ ................................ ................. 6 # Misdemeanors, DUIs, Felonies ................................ ................................ ............ 6 # What are Collateral Consequences and Civil Disabilities? ................................ 10 # !!" THE CIVIL DISABILITIES OF CONVICTED FELONS ................................ ... 14 # Housing ................................ ................................ ................................ .............. 14 # Employment ................................ ................................ ................................ ....... 17 # Federal Employment ................................ ................................ ...................... 18 # State Employment ................................ ................................ .......................... 19 # Armed Forces ................................ ................................ ................................ 19 # Private Employment ................................ ................................ ....................... 20 # Licenses and Government Agencies ................................ .............................. 21 # Working or Volunteering With Children ................................ ....................... 23 # Banking, Commodities, and Securities ................................ .......................... 24 # Labor Organizations ................................ ................................ ....................... 26 # Participation in Federal Contracts or Programs ................................ ............. 26 # Department of Defense Contracts ................................ ................................ .. 27 # Working for State or Federally Funded Health Agencies .............................. 27 # Americorp/Peacecorp/Jobco rp ................................ ................................ ....... 29 # Immigration ................................ ................................ ................................ ....... 30 # Government Aid ................................ ................................ ................................ 31 #

PAGE 6

vi Drug Offenders and Federal Government Benefits ................................ ....... 32 # Retirement Benefits ................................ ................................ ........................ 33 # Military Benefits ................................ ................................ ............................ 33 # Holding Office, Voting, and Jury Service ................................ ......................... 34 # Right to Hold Office ................................ ................................ ....................... 35 # Disenfranchisement ................................ ................................ ........................ 37 # Jury Service ................................ ................................ ................................ .... 38 # Gun Ownership ................................ ................................ ................................ .. 39 # Basics ................................ ................................ ................................ ............. 39 # Can a Felon Have Their Gun Rights Restored? ................................ ............. 40 # Sex Offender Registries ................................ ................................ ..................... 43 # Adopting Children or Being a Foster Parent ................................ ..................... 44 # Conclusion ................................ ................................ ................................ ......... 45 # !!!" OVERCOMING CIVIL DISABILITIES ................................ .............................. 46 # Current Ways to Overcome a Felony ................................ ................................ 46 # Presidential Pardons ................................ ................................ ....................... 47 # Gubernatorial Pardon ................................ ................................ ..................... 47 # Sealing and Expungement ................................ ................................ .............. 47 # A Note About Civil Rights Restoration ................................ ......................... 48 # Future Possible Ways to Overcome Civil Disabilities: State or Local Level .... 49 # State by State Office of the Pardon Attorne y ................................ ................ 49 # Market Incentives ................................ ................................ ........................... 50 #

PAGE 7

vi i Sentencing ................................ ................................ ................................ ...... 51 # Future Possible Ways to Overcome Civil Disabilities at the Federal Level ...... 52 # Are Civil Disabilities Cruel and Unusual Punishment? ................................ 52 # Equal Protection an d Suspect Status: The Ironically Named "Saving Grace"? ................................ ................................ ................................ ................................ .... 61 # Are Felons a Suspect Class? ................................ ................................ .......... 63 # Is a Felony Immutable? ................................ ................................ .................. 64 # Do Felons Have a History of Class Based Discrimination? .......................... 75 # Are Felons Politically Powerless? ................................ ................................ .. 77 # Inherent Suspicion of the Classification ................................ ........................ 86 # Felons Are a Suspect Class ................................ ................................ ............ 87 # The Other Option: A Call for Solidarity ................................ ............................ 87 # The Politics of Passing ................................ ................................ ................... 88 # Identity Politics and Felons ................................ ................................ ............ 89 # Conclusion ................................ ................................ ................................ ......... 90 # !$" ARE CIVIL DISABILITIES WRONGFUL DISCRIMINATION? ..................... 91 # Discrimination: Is it Really Wrong to Discrimin ate? ................................ ........ 91 # Wrongful Discrimination: Is Discrimination Always Wrong? ...................... 92 # A re Civil Disabilities Wrongful Discrimination? ................................ .......... 96 # Is It Always Wrong To Discriminate Against Felons? ................................ .. 98 # $" ARE CIVIL DISABILITIES A FORM OF CIVIL DEATH? ............................. 100 # Outlawry ................................ ................................ ................................ .......... 101 #

PAGE 8

viii Corporeality of the Outlaw ................................ ................................ ........... 103 # Death and Civil Death ................................ ................................ ...................... 104 # Civil Death, Monastery Life, and Forfeiture ................................ ................ 108 # Is Civil Disability a New Form of Civil Death? ................................ .............. 112 # Conclusion Social Death, Civil Death, Civil Disability Reconsidered ............ 116 # REFERENCES ................................ ................................ ................................ .......... 121 # SUPREME COURT CASES REFERENCED ................................ .......................... 126 #

PAGE 9

1 CHAPTER I FELONIES, CIVIL DISABILITIES, AND COLLATERAL CONSEQUENCES In 2016, American citizens are the inheritors of over forty years of bipartisan political wars waged on drugs, crime and gang s which has created a situation in which there are more prisoners in the U.S. per capita than are in any other country in the world. Interestingly, these policies seem to go in hand with the current recidivism rat e : 7 6.6% of prisoners will recidivate within five years of release and 43.4% will do so by the end of the first year after release ( U.S. Bureau of Justice Statistics 2014, 8) If these policies were effective at reducing crime safeguarding citizens, o r preventing incarceration the U.S. would not have a situation in which over three fourths of prisoners will go back to prison within five years after release and most in the first year It seems as these policies only "help" by ignoring the causes of a large portion of crime (poverty, lack o f opportunity, lack of education, and desperation) and by hindering the conditions necessary for felons to easily acclimate back in to society These policies focus on the misguided and questionable idea that people act merely out of rational choice and thus harshly criminalize behaviors such as drug dealing, pim ping, racketeering, theft, etc. in an attempt to rationally recondition people to be law abiding citizens rather than to addr ess the material conditions that create the desire to commit crimes such as the desperation someone feels when it seems like there are few or no options out of poverty W hile many people believe that prison and parole is the end of their punishment, the me n and women released from prisons with felonies on their records see the other side of these policies because their punishment ( s ) continue in the form of legal

PAGE 10

2 restrictions loss of rights, and normative discriminati on from employers and landlords referred to as civil disability (the full set of legal disability of all the civil disabilities facing a felon ) civil disabilities ( each disability or loss of right individually) or collateral consequences (the laws that create the se legal disabili ties) These legal disabilities are sometimes te mporary, but many are life long like the federal ban on owning firearms or on a permanent case by case basis as in job or housing discrimination. Civil disabilities also range from being related to the charge as in the bans on sex offenders working with children to the completely irrelevant like the ban on being a worker's union officer for years after a felony conviction. These disabilities, while just one facet of the problem of mass i ncarceration, are a lar ge and often ignored issue that needs to be considered because of their ramifications on mass incarceration and the lives of U.S. citizens K nowing that poverty, hunger, lack of opportunity, lack of education and desperation are major contributors to crime, what other than more poverty, hunger, desperation, hopelessness, and old criminal habits and knowledge leading to recidivism should be expect ed from a series of policies that drastically limit a felon's oppo rtunities to find housing and employment or get occupational licenses ? Or prevent them from enacting their civil duties to vote or sit on juries temporarily (usually while incarcerated or on parole) or permanently (Florida and Iowa ; other states ban certain felons from voting for life ) ? Or hinder drug felons from accessing government benefits (state by state, but federally inspi red or mandated laws) ? For these and other reasons I explain throughout the thesis, civil disability is not an apt term to describe the totality of civil disabilities Civil disability implies that someone is disabled, but still can function within society that they are just limited in some regard ; however, for a large portion of

PAGE 11

3 people who are civilly disabled, the disab ilities become a nexus of wrongful discrimination which prevent them from living a normal life particularly when you look at intersections of marginality like race discrimination plus felon discrimination It is this nexus of discrimination, or civil disability as a whole, which I term civil maiming because rather th an disabling people civil disability maims a felon s citizenship. Felons have a permanently wounded citizenship and there is little recourse to escape this woundi ng. Furthermore, civil maimi n g affects so many areas of a felon s life that it can be described as creating an underclass of people. In this thesis I argue that c ivil maiming is a n invidious form of discrimination because it is a major contributor to the problems of recidivism and mass incarceration in the U.S. Civil maiming stand s in the way of fel ons moving on with their lives and escaping the conditions that inspire ( d ) their criminal activity The irony being that just like holding onto anger or resentment, holding onto the guilt of the past fosters the exact conditions it purports to overcome But as the U.S. is left with the aftermath of years of, and still continuing, mass incarceration, it is imperative to work through these issues and explore what, if anything, can be d one to alter the penal system and laws to help prevent more people from being caught up in a permanent system of wrongful discrimination and alleviating the legal burdens on those already facing discrimination However, before I can make this claim fully, I need to explore civil disability to show why it is more apt to call it civil maiming. So, I will return to this concept in Chapter Five. As my addition to this working through the ramifications of mass incarceration, I explore the issue of civil disability in this thesis from a lega l and philosophical perspective Looking at the topic this way affords an opportunity see the more concrete

PAGE 12

4 parts of the problem of civil disability because laws are written agreed upon, mandated by a state power, and for the most need little interpretation to determine what behavior is and is not allowed before I explore the more abstract issues like whether or not civil disability is wrongful discrimination or civil death While the issues of civil disabilities ripple far beyond the law and philosophy, discussing cultural elements or sociological and criminal cor relations is much trickier to discuss in a thesis this size However, this concrete approach also will help readers to better understand the penal system and how it constitutes subjects as a felon which in turn creates a series of roles and limitations fo r the average felon to live out because the laws create many of the disabilities, the label of felon, the criminal record, the criminal categories under which a felony could exist, etc. In other words, by understanding the laws that create the legal category of felon, one is in a far better position to understand what a felon is, how they function in the world, and where their legal and material limitations are. There are five chapters in this thesis and each chapter builds on the previous Beca use of the tec hnical and jargon heavy nature of the thesis, the first chapter explores mu ch of the terminology and legal facets of felonies and civil disability. The second chapter explores the civil disabilities with a focus on federal la ws. The third chapter looks at the few ways someone can remove civil disability currently and suggests ways civil disabilities could be overcome in the future. The fourth chapter explores whether or not civil disabilities are invidious discrimination using the discussions of the previou s three chapters as a backdrop. Similarly, the last chapter looks at whether or not civil disability is a form of civil death. While others have made some of the arguments in this thesis, I believe that I have added four contributions to the discussion: first, I offer a more in

PAGE 13

5 depth exploration of what felonies and civil disabilities are than many other papers ; second, I explore the current difficult, time intensive, subjectively decided, and often expensive met hods of removing civil disabilities and a few possible future methods for removing civil disabilities some of which I have not seen anyone else argue for in the literature : capitalism or market incentives as a vehicle to overcome discrimination and the c all for a felon rights movement ran by felons; third, I add the concept o f demeaning individuals as wrongful discrimination to the discussion of wrongful discrimination; and fourth, I offer the concept of "civil maiming" to explain when civil disabilities become wrongful discrimination. While civil disabilities are not quite as extreme of a wrongful discrimination as civil death ( because civil disabilities do not completely kill a felon's citizenship or remove all of their rights ) civil disabilities create avenues in which the government maims a felon's citizenship The disabilities coalesce as a vast set of limitations on one's action s creating an underclass of maimed citizens rather than killing the class altogether. In this thesis, I ultimately argue that this maiming happens when the disabilities are irrelevant to the charges as the vast majority of them currently are and we allow little to no escape from them To begin, however, I need to explain the basics around criminal records and their ramifications in the lives of felons. T o that end, t his chapter sets the stage for the r est of the master's thesis by explaining terminology and beginning the process of questioning criminal records, felonies, civil disabilities, and collateral consequences. First, I discuss criminal records. Then, I ask, w hat does it mean to have a felony DUI, DWI or a misdemeanor on a criminal record ? And end with a section about the subtle differences

PAGE 14

6 between civil disability, civil disabilities, and collateral consequences and how they constitute the class of felon What is a Criminal Record? A crimin al record is a record of each time a person has been arrested, charged, convicted, issued a warrant for arrest, or served time in jail or prison. Generally, the full document is for police and governmental agencies only and will include infractions like tr affic tickets ; however, in most states (at least some of) this information can be easily obtained for free or for a fee from the state or a private company Generally, this information will only be about felonies, DUIs/DWIs, and certain misdemeanors Also, depending the state of conviction more or less information may show up on background checks some times, charges as well as convictions can show While technically illegal (U.S. Equal Employment Opportunity Commission 2012, under section V.B. "2. Arrests") having convictions show can create a situation wherein someone could be discriminated against for lying on an application or for being a felon when they actually are not because they wer e only charged, never convicted. Meaning that there might be other l evel s of discrimination that may arise because of the social or individual aspects of civil disability Misdemeanors, DUIs, Felonies Most Americans understand the basic difference between infractions, misdemeanors and felonies: infractions are minor thing s like traffic tickets; misdemeanors are generally less serious crimes and minor offenses with little to no jail or prison time; felonies are considered more serious crimes that often have a sentence of one or more years in prison or of death which may or may not actually be served

PAGE 15

7 Sometimes, felons known as "paper felons" do not serve prison time at all and are put straight into probation. M isdemeanors and felonies are often considered the first and second tier of criminal behavior and treason is the third and most serious. Though, for this discussion, consider treason a felony with additional civil disabilities like a sex offense, drug crime, or white collar crime in an industry with regulation demanding this like banking. However, the system is a little more complicated than that because of the interaction of federal and state laws. For instance, in some states, possession of any amount of marijuana including seeds and stems or the end of a joint is a felony (for instance, Ariz. Rev. Stat. ¤ 47 1101 ) Someone charged with a felony in Arizona for marijuana having stems would still be considered a felon after moving to a state where there were lax or even no laws against minor marijuana possession because this record follows them for life from the state of origin unless sealed, pardoned, etc. Often, misdemeanor crimes are things like shoplifting, drug possession, minor sex crimes like public indecency, minor thefts, minor traffic offenses small criminal negligence, etc.; however, it shoul d be noted that depending on the state, any, all, or certain variants of these could be considered felonies. For instance, it is common to have possession of minor drugs like marijuana be misdemeanor charges, but possession of even small amounts of "hard d rugs" like crystal meth, heroin, LSD, PCP, crack are felonies; however, in some states marijuana is punished more severely than in other states. Generally, there are few or no civil disabilities against people with misdemeanor charges on their record; howe ver, sometimes, these charges may interfere with their ability to lease some housing, acquire jobs with in depth background checks, or to acquire certain professional licenses or government/special clearances. Also, in some

PAGE 16

8 areas, even misdemeanor sex offe nses will require someone to register for the sex offender registry. DUIs/DWIs are driving under the influence or driving while intoxicated. First offenses are generally classified as misdemeanors, but are treated as more serious than most misdemeanors S u bsequent DUIs/DWIs, however, are felonies in many states They seem to hold a higher stigma than most misdemeanor crimes, but for the most part entail similarly small civil disabilities to misdemeanors the major difference being that DUIs/DWIs almost alway s sentence a person to surrender their driver's license for a period of time (this is a common civil disability for felons as well because of Department of Transportation funding requirements discussed in chapter two ). They have a bit of a stigma in some a reas and for some people because of the work of victim advocacy groups like MADD, the legal issues involved, existential experiences like knowing a few alcoholics or someone killed in a drunk driving accident, and having a DUI/DWI gives someone a criminal record; however, it is usually minimal in compari son to what a felon experiences. Felonies are generally things like assault, breaking and entering, child abuse, drug dealing, drug manufacture, grand theft, kidnapping, murder, pedophilia pimping, possession of drugs (amounts and what vary by state), racketeering, rape, treason 1 etc. As stated above, they for the most part are crimes with a sentence of one or more years in prison or a formal execution, but some felons serve little or no time ("paper felons"). There is a much higher societal stigma toward felons than other lawbreakers and they 1 While treason is slightly worse than a felony legally, for this project just assume treason is a felony plus extra disabilities that only apply to the treasonous in some cases

PAGE 17

9 almost always experience the few civil disabilities already d iscussed, plus quite a few more (covered in the next chapter) Even though there is a w ide variance of people with felonies and charges that are considered felonies, they are often lumped into one homogenous category of "bad people" in our societal imagination This may be because the U.S has taken from British legal traditions, which has a fascinating history. While the OED states that felon's "ultimate etymology is uncertain" ( OED Online 2015, s.v. "felon"), the words felon and felony seem to come from the Latin fel 2 meaning, "the gallbladder, gall, bile; poison, venom; bitterness" particul arly considering the link within English and popular culture to associate felons with being poison, wicked, evil, bitter, or otherwise awful people ( Cassell's 1987, s.v. fel ). This is also evident in the closeness of meaning of bitterness and venom with felons, which can also be seen in the meanings of its many derivations across the Romance languages: "wicked angry brave melancholy sad' (Italian fellone ), intensely painful'" ( OED Online 2015, s.v. felon") It is believed by some that fell (in the biblical/wicked sense) originally was the subject case and felon the object case, but the evidence shows interchangeable use ( OED Online 2015, s.v. felon"). However, this is not exactly the case in our time. Currently, in the U.S. the vast majo rity of felons are drug offenders I n U.S. prisons in early 2016 there ar e 86,080 drug offenders (46.5%), with t he next highest categories being weapons, explosives, arson at 31,292 (16.9%) and immigration at 17,354 (9.4%) (Federal Bureau of Prisons 2015). 2 One m ight compare this with felix (happiness, lucky, fruitful, successful), f!l"c"t# s (happiness, good fortune, success, goddess of...), and f les ( cat, a thief).

PAGE 18

10 In short, the differences between differing types of criminal records affect the amount of civil disability someone experiences greatly. This is why this thesis is focused on the civil disabilities of convicted felons and not other criminal levels; however, depending on what someone's misdemeanor record is for, what state they are in, how much a DUI/DWI matters there etc. will affect the civil disabilities/collateral consequence s experienced by any individual. What are Collateral Consequences and Ci vil Disabilities? Collateral consequences and civil disabilities are terms that are often used interchangeably to describe additional penalties and restrictions that follow a person after a criminal c onviction for a period of time This time period also varies de pe nding on crime and state e.g. in Florida, felons cannot vote unless pardoned ; however, in Colorado, felons can vote after completion of sentence There are many of them and some vary by state (see the next chapter discussion of civil disabilities ). Interestingly, collateral consequences and civil disabilities are not exactly the same thing, but refer to two sides of the same vague and unclear legal apparatus: the penalty and the condition of living with it. Black's Law Diction ary says that c ollateral consequence s are a penalty for committing a crime, in addition to the penalties inclu ded in the criminal sentence. An example is the loss of a professional license" ( 9th ed. s.v. "collateral consequence"). In other words, collateral consequences is the legal term for the penalties a felon faces after (and sometimes while) completing their sentence. Civil disability, on the other hand, is one of ways in which someone can be legally "disabled": Disability. (16c) 1. The inab ility to perform some function; esp., the inability of one person to alter a given relation with another person. 3. Inc apacity in the eyes of the law ( most of a minor's

PAGE 19

11 disabilities are removed when he or she turns 18) (Black's Law Dictionary 9th ed s .v. "Disability"). This means that rather than being the hindrances/penalties themselves, disability is the state of being unable to do things. Continuing this, Black 's reads, Civil disability (18c) The condition of a person who has had a legal right or privilege revoked as a result of a criminal conviction, as when a person's driver's license is revoked after a DWI conviction. Cf. civil death (2) under DEATH" (9th ed. s.v. "Disability"). T his says something interesting: collateral consequences are penalties that are enacted when someone is convicted, but are not directly part of the sentence; disabilities are an "inability to perform some function" and an "incapacity in the eyes of the law"; and ci vil disability, therefore, is a legal condition which is a subclass of disability because it is when someone is unable to do certain things because they have an "incapacity in the eyes of the law" due to a penalty of law, i.e. collateral consequences. It should also be noted that if speaking of all of the civil disabilities as a whole, it is generally written civil disability ("to live as a felon is to experience civil disability"), but if speaking of the disabilities as individual things, civil disabiliti es is u sed ("felons experience many civil disabilities"). In summary, sometimes people use civil disabilities and collateral consequences as if they were synonymous ; however, a deeper look at the definitions shows that there is a subtle difference. Collate ral consequences are additional (often lifelong) punishments for committing a crime that accompany the sentence, but are not explicitly detailed within the sentence. This is because they are legal mechanisms that are enacted when someone has been convicted and has become/been declared a convicted felon. These legal mechanisms create a condition of disabilit y because they are an inability to do something.

PAGE 20

12 Hence why a collateral consequence is "a penalty a disability is "the inability to perform some functi ons and a civil disability is having a legal right or privilege revoked as a result of a criminal conviction I f thought of together, a bigger picture is created : for a felon, the punishment of the collateral consequences/civil disability is both the direct extra punishments themselves and the lifelong new position in life (being civilly disabled) that arises from being subjected to the conditions of having many c ollateral consequences Like a judge declaring someone man and wife, creating a marriage with their very words, a felon is subject to these disabilities as a result of being performatively declared a felon. It is the judgment of felon that makes them subje ct to the surrender of the following rights and "privileges" that most American citizen s take for granted B y being subjected to the civil disabilities of convicted felons felons have many of their freedoms taken away In this regard, the definition of ci vil disability points one in the right direction: civil death (the full loss of rights). This raises the question are civil disabi lities the same thing as civil death? But this is a question I cannot adequately a ddress because I need to say more ab out civil disabilities, their ramifications in the world and discrimination before I can speak on their dele terious effects or lack thereof ( I re t urn to it in the last chapter of this thesis ) F or n ow I turn to a detailed discussion of the civil disabil ities of convicted felons in the next chapter. This discussion covers federal and state disabilities as well as discriminations that are possible because there are little to no legal oversights against discriminating against felons. This prepares me for the discussions in chapters three, four, and five about ways out of having a felony charge, whether or not felon discrimination is wrongful discrimination, and whether or not civil disability is synonymous with civil

PAGE 21

13 death.

PAGE 22

14 CHAPTER II THE CIVIL DISABILITIES OF CONVICTED FELONS 3 Now that I have explained a bit about criminal records and what civil disabilities are in the abstract, I can discuss what they are in the law and in practice Most of these are laws, but some are direct ramifications of laws or lack thereof. The civil disabilities covered below are h ousing, employment, participation in federal contracts or programs, immigration, government aid (mostly just special disabilities for drug offenders ) civic du ties (voting, holding office, jury service), gun ownership, sex offender registry, and adopting children. D isabilities can be lifelong or temporary, crime specific or general: time frame and severity vary state by state. Housing Felons of ten face housing d iscrimination in the form of HUD housing bans and discrimination from landlords because there is no ban on discriminating against them under Equal Housing law and they are seen as undesirable tenants. Federal p ublic housing law w ith the exception of being convicted of manufacturing methamphetamines in public housing [42 U.S.C. ¤ 1437n(f)] and being a registered sex offender for life (42 U.S.C. ¤ 13663) leaves all other felonies completely within the discretion of the public housing authority, its age nts or other landlo rds. The aforementioned may evict anyone who currently is considered involved in drug or violent crime ban anyone who 3 This section owes a great debt to The Civil Disabilitie s of Convicted Felons and ABA Collateral Consequences map, a website that has most of the state by state disabilities ( http://www.abacollateralconsequences.org/ ). I started with the original sources, fact checked, updated, and added to them.

PAGE 23

15 previously has engaged in a drug or violent crime (s) or either to any party that poses a risk to other tenants or anyone employed or contracted to work on the property [24 C.F.R. 5(I)(845)] Similarly 42 U.S.C. 8 ¤ 1437f(d)(l)(B)(iii) states that tenants of federally funded housing can be evicted if they, a member of their household, or a guest commits a criminal act that is seen as threatening health, safety, or rights to share the property or commits a drug crime. In fact, there are many sad cases of innocent people being evicted for crimes committed by other people especially because of the one strike policies some housing authorities have for any criminal activity For instance, Caroline Castle writes of one in her 200 3 paper, Gloria White lives in a public housing complex .. While away from her apartment Ms. White's ex boyfriend, being chased by the police, br oke into Ms. White's apartm ent by climbing in through a bedroom window. The police had the housing authority manager unlock the door to the apartment so they could apprehend the ex boyfriend, who was found to be in possession of cocaine. The ex boyfriend was not on the apartment lease. He did not live in the apartment. He was not invited into the apartment. He was no longer a regular guest. He was the only person in the apartment at the time of his arrest, and the police saw him break into the apartment t hrough a window. Yet, Ms. White received a notice from the housing authority shortly after the break in stating that the terms of her lease had been violated and that the lease would be terminated. (Castle 2003, 1435) While it might sound far fetched, the se policies can and do affect people who are not even involved in crimes, bu t happen to know someone who commits or is only just arrested for a criminal action. Castle also mentions a mother whose daughter was arrested with cocaine a few blocks away, a dis abled elderly man whose caretaker had cocaine in the apartment, and a grandmother whose grandson had marijuana in the parking lot who were also evicted from public housing (Castle 2003, 1435). In fact, in Chicago in 2010, eighty six percent of the people e victed because of the one strike policy there were not on the lease (Peterson 2013, 165). And the Supreme Court upheld the ability for landlords

PAGE 24

16 and public housing authorities to have one strike policies in 2002 [Peterson 2013, 165; Department of Housing a nd Urban Development v. Rucker (2002)]. Further, 42 U.S.C. ¤ 1437d(k) covers an expedited eviction process for these crime related evictions After this, according to 42 U.S.C. ¤ 1437f(d)(l)(A)(iii), those evicted for this reason are banned from federal ho using benefits for three years. If convicted three times, the federal housing aid ban becomes mandatory and permanent. These evictions can be removed however, if the person enters rehab, cannot enter reha b because it is unavailable, is already rehabilitat ed, or serves as a witness for the federal government to prosecute other offenders (U.S. Office o f the Pardon Attorney 1996, 11); however, this too is at the discretion of the local housing authorities and the landlords. But that whole issue aside, the dis crimination against drug felons in public housing themselves is so prevalent and invasive that housing providers frequently err on the side of denying assistance to individuals who have had even minimal contact with the criminal justice system" (Tran Leung 2015, 4 ). There is a Shriver Center report on this issue arguing that in order for federally assisted housing to be fair and balanced, it must have four changes: (1) the amount of time felonies are relevant ("lookback period") must be scrutiniz ed because currently it is at the discretion of the landlords and public housing authorities; (2) no longer use arrest records as proof of criminal activity because arrests are not equivalent to guilt; (3) remove or at least scrutinize overly broad catego ries of criminal activity for permanent bans; and (4) offer an opportunity for felons to explain mitigating circumstances and their life changes since their conviction to show rehabilitation or little reason to commit further offenses (Tran Leung 2015 35 37 ) In a similar vein, m any cities across the U.S. have taken on "Crime Free Housing"

PAGE 25

17 policies, which are partnerships between landlords and the police. They suggest to landlords to carefully screen tenants, to report things to the polic e, to evict people even if most, or all of the evicted are the victims of certain crimes ( e.g., domestic violence), etc. Even without these policies, m ost real estate management companies will not rent to felons for a variety of reasons usually relating t o liability And while this is a form of discrimination, because felons are not considered a suspect or quasi suspect class, they are not considered safeguarded from this kind of discrimination under Fair Housing and Equal Opportunity laws However, p rivat e owners will occasionally rent to felons. It is much easier to rent from them because a felon can bring it up if they do, or when they do, after they have gotten to know the potential tenant a bit, and it is ultimately up to the landlord and not a predetermined policy. But there are plenty of private owners that also will not rent to felons either it is at their discretion and gener ally thought of as risky. Employment There are many types of employment disc rimination facing felons. According to the Equal Employment Opportunity Commission, 92% of employers stated that they subjected all or some of their job candidates to criminal background checks. Employers have reported that their use of criminal history information is related to ongoing efforts to combat theft and fraud, as well as heightened concerns about workplace violence and potential liability for negligent hiring. Employers also cite federal laws as well as state and local laws as reasons for using criminal background checks. ( 2 012 ) In other words, many employers use criminal records to screen applicants for a variety of purposes. And generally, this is not considered wrongful discrimination. Criminal records are not covered under Title VII of the Civil Rights Act of 1964 (amended) ; however, if a felon can show that an anti felon hiring policy or practice e ither shows disparate treatment, then, this is ground for a wrongful discrimination claim. Currently, there are

PAGE 26

18 two ways in which discrimination can be considered wrongful discrimination, (1 ) the discriminatory act discriminates against people in classes protected under Title VII (e.g. a white felon and a black felon apply for the same job, but the black felon is denied because of his record, whereas the white felon is given a job showing racial disparity in their hiring practices around felons ) or (2) the policy creates a disparate impact on a Title VII protected group (e.g. a policy creates a situation in which no racial minorities are a part of the company because they have all been scr eened out due to high numbers of the minority in the area having criminal records) ; however, for the claim to go through, there has to be a semblance of negligence. In other words, a policy is only considered wrongful if the employer "fails to demonstrate that the practice is job related for the position in question and consistent with business necessity" (Equal Employment Opportunity Commission 2012). But this policy, like so many others, leaves a large loophole: anything that can be deemed relevant to t he job can be an acceptable discrimination. And since felons are considered already suspect, it is not a far stretch to make many highly discriminatory policies seem relevant to the job. This is why many large companies with basic entry level jobs for the most part do not hire felons In this section, I delve more deeply into this and look at federal employment discrimination the armed forces ban, federal regulations on private emplo yment, labor organization bans, regulatory agencies etc Federal E mployment Federal employment of felons is at the discretion of hiring agency with the exception of some specific crimes (like treason, starting a riot, encouraging overthrow of the government, etc.) which are sometimes permanently banned from federal

PAGE 27

19 empl oyment but generally banned for a period of five years Other than these exceptions, a felony conviction does not disqualify a person from federal employment, but is a factor in determining suitability for it, according to the Office of Personnel Managem ent" (U.S. Office of the Pardon Attorney 1996, 7). There are, however, certain federal jobs for which a felo n is permanently banned, for example "service on the National India n Gaming Commission" [25 U.S.C. ¤ 2704(b)(5)(A)] ( U.S. Office of the Pardon Attor ney 2006, 3 ). State E mployment Different states have different laws about who can and cannot work for the state. In my research, I was unable to find any state that straightforwardly denied all felons the right to work for it; however, this does not mean that it does not happen Most states allow employment of felons to be discretionary, but some will only allow felon discrimination if the felon's charge directly relates to the job, for example, Kentucky (Ky. Rev. Stat. ¤ 335B.020) Louisiana (La. Rev. Sta t. ¤ 37:2950), and Minnesota (Minn. Stat. ¤ 364.03 ) (Legal Action Center 2) Armed Forces There are few felons in the armed forces because accepting felons is against federal law 10 U.S.C ¤ 504 (a) says that anyone who is insane, a deserter, or conv icted of a felony cannot enlist, but the Secretary concerned may authorize exceptions, in meritorious cases, for the enlistment of deserters and persons convicted of felonies. So metimes, felons can join the military but only if they are considered "meritorio us" or more honestly, when th e military really needs people like during the Iraq war.

PAGE 28

20 Private Employment There is a general belief in our culture that felons are dangerous and untrustworthy. Many authors have supported this idea, suggesting that for someo ne hiring, felons appear to have less inherent trustworthiness and background checks offer a simple, seemingly reliable indicator of higher quality employees. Bushway, in his dissertation, argues this point and suggests that companies who do not or cannot background check will most likely take one of two poor strategies that lead to exploitation or discrimination : (1) hire a large pool of people at lower wages, expecting higher turn over and lower productivity or (2) create potentially racist standards in order to screen out felons because if a disproportionate amount of felons are black or Latino, discrimination against them would create lower odds of hiring a felon (1996, 100 117) Paradoxically, Bushway argues, background checks help non felon blacks and Latinos avoid discrimination because they are less likely to be denied employment and more likely to receive a higher salary and better quality jobs (1996, 11 7). However, there is a fundamental flaw in his argument: if blacks and Latinos are already considered to be correlated to crime, then, all black or Latinos are potential criminals waiting to be caught; ther efore, they are all potentially suspect. This creates a situation in which t hey are less likely to be hired at all because they always carry the stigma of being a potential criminal. I n fact, a black man without a felony is slightly less likely to get a ca llback than a white male felon (14% v. 17%) (Pager 2007, 91). On this point, P ager writes, d espite the fact that the white applicant revealed evidence of a felony drug conviction, and despite the fact that he reported having only recently returned from a year and a half in prison, employers seemed to view this applicant as no more risky than a young black man with no history of criminal involvement. we are confronted with a troubling reality: being black in America today is just about the same as having a felony conviction in terms of one's chanc es of finding

PAGE 29

21 a job. (2007, 91) In fact, the troubling reality is that the chances seem to be slightly lower for black men. And when one adds a felony on top of that, it makes the situation far direr : a black man with a felony has a 5% chance of getting a callback (Pager 2007, 91). Unfortunately, I lack the space to continue the race question further here, but it is food for thought: how much of the discrimination that happens because of criminal records affects p eople without criminal records? What does this label of criminal or potential criminal do to a person's identity? How much of the discrimination against felons is in people's thoughts and behaviors toward felons rather than in the behaviors and thoughts of felons? L icenses and Government Agencies Conviction of a felony is thought of as blight on a person's character. Someone with a felony charge needs to be more carefully considered than everyone else. As part of probation or other supervised situation, t he sentencing court can restrict the defendant's or defendants' occupations if a reasonably direct relationship exists between the occupation and the offense, and there is reason to believe the defendant will continue to engage in unlawful conduct similar to the(ir) convict(ion) U.S.S.G. ¤5 F1.5(a) [t his is also covered in 18 U.S.C. ¤¤ 3563(b)(6) and 3583(d) ] (U.S. Office of the Pardon Attorney 1996, 8). But t here are certain federal licenses that are automatically lost when convicted of a felony The Civil Disabilities of Convicted Felons text notes a few: C ustoms broker's license (19 U.S.C. ¤ 1641(d)(l)(B)); export license (50 U.S.C. App. ¤ 2410(h)(1)); license to export defense articles and services (22 U.S.C. ¤ 2778(g)(3)(A), (B)); merchant mariner's document, license, or certificate of registry (46 U.S.C. ¤¤ 7101, 7109, 7302, 7503)); locomotive engineer's licens e (45 U.S.C. ¤ 431(i)(D)(iii)); licenses held by persons convicted of drug offenses (21 U.S.C. ¤ 862(d); U.S.S.G. ¤5F1.6, d iscussed in section D, infria) (U.S Office

PAGE 30

22 of the Pardon Attorney 1996, 8) And the 2006 supplemental update adds a few more: G rain inspector's license (7 U.S.C. ¤ 85); license to import, manufacture, or deal in explosives or permit to use explosives (18 U.S.C. ¤ 843(d)); commercial motor vehicle operator's license (49 U.S.C. ¤ 31310); 49 U.S.C. ¤¤ 44709(b)(2), 44710(b), and 14 C.F.R. ¤ 61.15 (certificate, rating, or authorization of pilot, flight instructor, or ground instructor) ( see also Zukas v. Hinston 124 F.3d 1407 (11 th Cir. 1997) (revocation of commercial pilot's certificate as a result of a federal drug conviction)) (U.S. Office of the Pardon Attorney 2006, 4 5) Therefore, for many felons, many occupational licenses are out of the question at leas t for a few years as many of the bans are for two to ten years; however, some are for life and the remainder of the bans or disabilities are at the discretion of a state or federal board or members of a state or federal regulatory agency This form of limi tation creates a situation in which upward mobility can be extremely difficult often after a felon or an agency has put money time, and effort into occupational training. Ben Geiger, who I discuss at length in chapter three, writes about a particularly ir onic case New York state, which has one of the strongest statutory commitments to rehabilitation, faced one of the great ironies of occupational licensing restrictions when T he New York Times reported the story of a successful graduate from a prison vocational training program in barbering who could not get a license due to restrictions imposed by the state licensing board. This case illustrates how even state governments with firm commitments to rehabilitation badly mismanage the clash of competing policy interests ( 2006, 1202) Most g overnment re gulatory and licensing agencies use a felony conviction as part of their review process f or licenses and registrations In some circumstances, peopl e with felonies and previous infractions (and who report it) are the only people whose characters are considered at all And sometimes, felons are able to slip through the cracks, passing by lying on the forms because in some places, the only people that have their backgrounds checked are people who admit to having a felony. How is that in the interest

PAGE 31

23 and safety of the people of the state? What if non felons pose a danger to the citizens as well? This happens because as the Civil Disabilities of Convicted Felons (1996) text notes a felony conviction is a relevant consideration when an agency reviews an application for a license. Although not an absolute bar to licensure, agencies closely examine convictions related to the license being given, and other convictions as a s ign of the licensee's character (U.S Office of the Pardon Attorney 1996, 8) Sometimes, these are relevant concerns like when the Attorney General suggests considering criminal charges for drug manufacturing or dealing when deciding if someone can register to be legally involved in manufacture, distribution, or research of drugs (21 U.S.C. ¤ 8 23) (U.S. Office of the Pardon Attorney 1996, 8) And sometimes, they are rather irrelevant or slip pery slope concerns like 5 F.C.C.R. 3252, which expands the scope for the Federal Communications Commission by suggesting that all felony convictions be considered part of the exploration of an applicant's character because having committed a felony demons trates a willingness to violate laws and thus, an applicant may not follow the F.C.C.'s rules either (U.S. Office of the Pardon Attorney 1996, 8). Working or V olunteering W ith C hildren In most states, a person has to have a clean background to work or v olunteer around kids, particularly in relation to sex offenses violence, domestic violence, and child abuse. People with those convictions are banned or removed from wo rking or volunteering with kids in most states but it is not s o clear with other criminal convictions. The federal guidelines are lax, but recommend background checks. 42 U.S.C. ¤ 5119a(a)(1) says that states may require background checks for anyone working

PAGE 32

24 with children, the elderly, or disabled people (U.S. Departm ent of Justice 1998, 7 8) But this varies by state. Some states make hiring or firing a felon discretionary [e.g. Alabama (Ala. Admin. Code r. 290 3 2 .34)]; som e states ban the above plus a few others like drug and fraud offenses forever [e.g. Illinois (89 Ill. Adm Code 385)]; and some make bans on felonies other than sex offenses, violence, child abuse, or domestic violence a temporary ban [e.g. Florida has a three year ban (Fla Stat. ¤ 435.07)] Banking, C ommodities, and S ecurities There are several federal laws about felons working in banking, commodities, and securities. For t he most part, they are statutes preventing felons with crimes in banking or money like money laundering, (a) breach(es) of trust, dishonesty, mail fraud, gambling, etc. from wor king in banks If convicted of a crime related to dishonesty, violations of trust, or money laundering, a person cannot work in own be a director or officer of, own enough stock to be a controlling stockholder in or "participate in the affairs of" a FDIC institution (12 U.S.C. ¤ 1829) (U.S. Office of the Pardon Attorney, 1996, 8 9). The FDIC can waive this ten years after conviction with some offenses (12 U.S.C. ¤ 1829) (U.S Office of the Pardon Attorney 1996, 8 9) According to 12 U.S.C. ¤ 1818(g)(1)(c) the Com ptroller of the Currency is an independent branch of the U.S. Treasury focused on regulating, chartering, and supervising banks in the U.S. (including foreign n ational banks on U.S. territory). The Comptroller can remove people from offices of or from having anything to do with the operations of an FDIC institution if they have been convicted of a crime about dishonesty, breach of trust or money laundering and if "continued service or participation by such party may pose a threat to the interests of the depository institution's

PAGE 33

25 depositors or may threaten to impair public confidence in the depository institution" (U.S Office of the Pardon Attorney 1996, 9). Also 7 U.S.C. ¤¤ 12a(2)(D ), (3)(D) states that the Commodity Futures Trading Commission can deny suspend, revoke, place restrictions on, or offer conditional registry to applicants for futures commission merchant, introducing broker, commodity trading advisor, commodity pool oper ator, or flood broker i f they have been convicted of a felony in the last ten years "relating to commodities futures trading or of an enumerated offense, including such crimes as embezzlement, mail fraud, false statements, theft, bribery, gambling, and federal tax offenses" (U.S Office of the Pardon Attorney 1996, 9). But they can also conditionally or not at all register someone convicted of a felony or "an enumerated offence" over ten years old (7 U.S.C. ¤ 12a(3)(D)) ; someone con victed of a misdemeanor related to commodities trading (7 U .S.C. ¤ 12a(3)(E); or someone "convicted in state, military, or foreign court of conduct that would be a felony under federal law (7 U.S.C. ¤ 12a(3)(H)) (U.S Office of the Pardon Attorney 1996, 9). Similarly, 15 U.S.C. ¤¤ 80b 3(e)(2) and 78 o (b)(4)(B), lay out that t he Securities and Exchange Commission may censure, place limitations on the functions or operations of, suspend, or revoke the registration of any investment adviser if he or she was convicted within the previous 10 years (or with in 10 years of filing an application for registration) of certain enumerated felonies or misdemeanors, including such offenses as securities violations, theft, forgery, counterfeiting, embezzlement, perjury, br ibery, and mail fraud (U.S Office of the Par don Attorney 1996, 9) In other words, for the most part, banking and securities civil disabilities often are rationally related to the crimes committed; however, because it can be discretionary and about any felonies there are other felons who could expe rience discrimination as well.

PAGE 34

26 Labor O rganizations Though the court can set a smaller, only three year ban, m ost f elons are banned for 13 years (after conviction or end of prison time, whichever is later) from serving in a labor organization or from working on or with employee benefits plans ( 29 U.S.C. ¤¤ 504, 1111 ) This ban comes into play if they have been convicted of "certain offenses (including ) robbery, bribery, extortion, embezzlement, fraud, drug violations, murder, assault with in tent to kill, rape, and certain offenses relating to a labor organiz ation or employee benefit plan (U.S Office of the Pardon Attorney 1996, 9). In other words al most everything a person would go to prison for. But this ban can be lifted in two ways: e ither by one of sever al federal courts or by the United States Parole Commission. It depends on if the person has been pardoned or not : "The disability may be removed sooner if the individual's citizenship rights', having been revoked as a result of such conviction, have been full y restored (U.S. Office of the Pardon Attorney 1996, 9 10). According to 29 U.S.C. ¤¤ 504, 1111, disabilities for federal offenses after November 1, 1987 can be removed by the sentencing court and state felonies can be removed by the United States District Court serving the area in which the felony was committed as long as this is still in accordance with the U.S.S.G (U.S Office of the Pardon Attorney 1996, 9 10). In a similar way, t he disability for offenses com mitted before November 1, 1987 may be removed by the United States Parole Commission" (U.S. Office of the Pardon Attorney 1996, 9 10). Participation i n F ederal C ontracts o r P rograms If convicted of felonies related to specific federally funded contracts or health agencies, people can be banned from working un der funding from the government.

PAGE 35

27 Though, other charges or collateral consequences rela ted to government funding (e.g., being evicted from HUD housing for a drug charge or being arrested for childcare fu nding fraud) can also ban someone for a set of years. However, those convicted of any felonies may have issue s being accepted into a program like Americorps as well. Department of Defense C ontracts 10 U.S.C. ¤ 2408 bans people "convicted of fraud or any felony" relating to a Department of Defense (DOD) contract from wo rking on projects funded by DOD contracts. They can no longer work in management or supervise anyone, serve on a board of directors, or consult f or any company that is contractor or subcontractor for the D OD Th e Secretary of Defense set s the period ( which can be waived "in the interests of national security"), but it is usually five years (U.S Office of the Pardon Attorney 1996, 9 10). Working for S tate or Federally F unded H ealth Agencies 42 U.S.C. ¤ 1320a 7(a) states that people conv icted of program related crimes or who have convictions relating to patient abuse, a felony related to health care fraud, or a felony related to trafficking a controlled substance ("unlawful manufacture, distribution, prescription, or dispensing of a controlled substance") are mandatorily excluded from working in Medicare and State health care programs. 42 U.S.C. ¤ 1320a 7(b) adds that the Secretary of Health a nd Human Services can exclude people for many reasons: people excluded from other government healthcare programs; those with revoked or suspended licenses (to practice healthcare); individuals or agencies "that the Secretary determines" are excessively cha rging, offering unnecessary services, or failing to offer "medically necessary services"; fraud, kickbacks, etc. as determined by the Secretary; entities

PAGE 36

28 controlled by a sanctioned person (e.g. a mandatory excluded people is the owner of a healthcare company); failure to disclose required information or information about contractors and suppliers; failing to provide payment information; being convicted of defrauding Medicare or another governmen t funded agency, of obstructing an investigation or audit, or misdemeanor distribution of a controlled substance (as above, but misdemeanor level) ; and a few other issues that are irrelevant to our discussion here. Similarly mandatory and permissive exclu sions for parts of the generic drug industry are spelled out in 21 U.S.C. ¤335a The Secretary of Health must ban anyone convicted of a federal felony involving the development or approval of any "abbreviated drug application" and can, at their discretion, ban individuals convicted of misdemeanors relating to drug applications or aiding or abetting a felony related to drug applications from working in the generic drug industry. It is the same with anyone convicted of a felony "which involves bribery, paymen t of illegal gratuities, fraud, perjury, false statement, racketeering, blackmail, extortion, falsification or destruction of records, or interference with, obstruction of an investigation into, or prosecution of, any criminal offense" or aiding or abettin g or conspiring to commit one of these felonies whose conduct appears to show that they might violate the requirements of federal drug restrictions (21 U.S.C. ¤335a(b)(2)(B)(ii) (U.S. Office of the Pardon Attorney 1996, 9 10) Similarly with a felony relat ed to importation of food into the United States. The ban is for 1 10 years, depending on the reason, and onl y permanent if another felony conviction happens within the next ten years (U.S. Office of the Pardon Attorney 1996, 9 10)

PAGE 37

29 Americorp/Peacecorp/ Jobcorp In some circumstances, felons can join AmeriCorps, Peace Corps, and Job Corps. For the most part, AmeriCorps and Peace Corps ban sex and violent offenders, people who are clearly mentally ill or who seem to have problematic behavior, and people cu rrently on parole; however, others will at least be considered. Job Corps uses criminal records as one aspect of a screening process. Though, each of the programs has their own additional guidelines that fit in with their unique mission. PeaceCorps is open to certain felons, but can deny a person for a failed background check (Peace Corps 2015, under "Background Investigation" ). AmeriCorps has stricter constraints: b e a law abiding citizen with: no sex offense convictions, no violent felony convictions, no non violent felony convictions within the past 10 years, no pending felony charges, and not c urrently on parole or probation (The Servant Center 2015 ). However, this is just to get into the AmeriCorps system: one is not an AmeriCorps member until they are hired by a partner organization who will have their own hiring criteria some of which will make felons ineligible in certain states or organizations T his partner organization is a non profit who has been awarded a grant from AmeriCorps to hire someone to take on some work the non profit. W hile felons can join AmeriCorps, their options are limited to the discretion of the individual hiring managers. Job Corps has more nuanced rules about applicants and criminal records, probably because of the population they serve is much more likely to have a criminal record. According to Appendix 103 ("Guidelines for Reviewing Applicant Files"), which has a section spe cifically on criminal records or current cases against an applicant in the Job Corps Policy and Requirements Handbook

PAGE 38

30 a pplicants cannot be denied enrollment in Job Corps solely based on contact with the criminal justice system. There is not a specific li st of criminal offenses that automatically determines that an applicant is unsuitable for enrollment in Job Corps, nor is there a specific criminal offense or number of convictions that automatically disqualifies an applicant from Job Corps. Applicant cr iminal history review is meant to determine whether the applicant will exhibit behavior that is incompatible with the maintenance of sound disc ipline in the Job Corps ( U.S. Department of Labor 2015, Appendix 103, 3) But the handbook also notes that, w here possible, Job Corps will screen applicants for behavioral problems and criminal history that would exclude them from participation in the Job Corps program (U.S. Departmen t of Labor 2015, Exhibit 1 8, 2). From this it seems as if there are certain o ffenses that are always thought to ban someone from Job Corps after all In all of these organizations, like much of hiring practices in the U.S. whether or not a felon will be accepted will be contingent on a series of rules laid out by a group of upper level managers or politicians, and must applied by the lower level people doing the hiring In other words for the most part, hiring decisions beyond the scope of the few rules about it above are up to the discretion of the hiring managers at the governme nt or private organizations that hire or accept applicants. Immigration For the most part, if an alien legal or illegal i s convicted of a felony, the alien is deported. The U.S. Office of the Pardon Attorney list quite a few crimes that could get an alien deported: crimes involving moral turpitude (unless only one crime punishable by under a year and a sentence of less than six months was handed down); multiple offenses whose sentence combine to ov er five years; drug violations [ 8 U.S.C. ¤¤ 1182(a )(2)(A), ( B), (C) respectively] ; if the alien were excludable at time of entry [8 U. S.C. ¤ 1251 (a)(l)(A)] ; "two or more crimes of moral turpitude not arising out of a single scheme"; an

PAGE 39

31 aggravated felony, e.g. murder, drug or gun trafficking, money la undering, or violent crime punishable by over five years in prison [8 U.S.C. ¤ 1101(a)(43)] ; some firearm offenses; treason, terrorism, or espionage [8 U.S.C. ¤ 1251(a)(2)]; and some immigration related offenses (U.S. Office of t he Pardon Attorney 1996, 12). Having "good moral character" is a key requirement of naturalization A person will not be qualified to naturalize because of "good moral character" if they have spent over 180 days confined or been convicted of a crime involving moral turpitude (except those pun ishable for under a year with less than a six month sentence imposed), two or more convictions with a combined sentence of over five years, a drug offense other than possession of small amounts of marijuana (though, depending upon the state of conviction, for instance Arizona, this could be a felony and therefore, grounds for deportation) two or more gambling offenses during their grace period or have ever been convicted of an aggravated felony [8 U.S.C. ¤¤ 1101(f)(3), (5), (7), (8); 1427(a)] (U.S Office of the Pardon Attorney 1996, 11 12). Government A id Certain felons are denied access to government aid because of the crimes they were convicted of or the property those crimes took place on. Similarly some convictions are considered felonies in some st ates and not in others which may or not trigger government aid ba ns on a federal or state level depending on where the conviction takes place and where the funding for government aid comes from And of course, m any programs that distribute government benefits, even those run by state and local governments or other forms of non profit agencies, function off of federal funds or are run by the federal government; therefore, many of these programs fall under or are

PAGE 40

32 influenced by federal laws. Because of th is, s ome federal benefits can be lost or altered after being convicted of a crime because of a federal law; however, this is not to say that states do not discriminate or cannot override the discriminatory federal policies Some of these, I have discussed above, like housing benefits, but the majority of how federal laws affect felons seeking other types of federal aid or retirement pay is covered below. Though, it should be noted that most of the government aid discrimination happens to drug offenders. Dru g Offenders and Federal Government Benefits To anyone who is familiar with the issue of civil disability, the special disabilities for drug felons are not shockin g : i n fact, the vast majority of the topics in this section on government benefits apply solely to drug offenders and others were covered in the section on public housing This is because i n the 1990s, there was a massive wave of anti crime legislation that vastly increased the amount of civil disabilities against drug felons. While Nixon may have started the War on Drugs, the legislature s during the Bush (Sr.) and Clinton years drastically added to the issue of civil disabilities a fact that likely accounts for at least part of the massive increases in drug felons and recidivism in the 90s. A ccording to 21 U.S.C. ¤ 862 and U.S.S.G. ¤5F1.6, "drug offenders convicted after September 1, 1989 will have restrictions put on their ability to receive grants, licenses, contracts, and other federal benefits, retirement, welfare, Social Security, health, disability, public housing, and benefits based on military service" (U.S. Office of the Pardon Attorney 1996, 11). The period of disability is shorter for possession [21 U.S.C. ¤ 862 (a)] than for trafficking [ 21 U.S.C. ¤ 862 (b)] ; is permanent upon third c onviction of trafficking [ 21 U.S.C. ¤ 862 (a)(1)(C)]; can be shortened for entering, completing, or

PAGE 41

33 ( because of capacity issues only) being unable to attend drug rehabilitation or a drug treatment program [ 21 U.S.C. ¤ 862 (c)]; and does not apply to people w ho enter witness protection or offer information or testify against someone else [ 21 U.S.C. ¤ 862 (e)] (U.S. Office of the Pardon Attorney 2006, 10) In 1996, more disabiliti es were added for drug felons (even just possession) including inability to receiv e food stamps or temporary assistance to needy families (TANF) [21 U.S.C. ¤ 862a(a),(b),(d)(2)] and inability to receive federal student aid for college for a period of two years after a first conviction [20 U.S.C. ¤ 1091(r)] (U.S. Office of the Pardon Atto rney 2006, 10). Finally, passport s may be revoked [22 U.S.C. ¤ 2714(a)(2)] or not issued [22 U.S.C. ¤ 2714(a)(1), (b)(1)] if a person is convicted of drug crime involving international borders or direct use of a passport as long as a person is in prison, on supervised release, in a jail type facility, or in a halfway or treatment center [22 U.S.C. ¤ 2714( c), (e)(4)] (U.S. Office of the Pardon Attorney 2006, 10). Retirement Benefits 5 U.S.C. ¤ 8312 and 42 U.S.C. ¤ 402(u)(l) state that people, survivors, and beneficiaries of people owed annuity or retirement may be denied or subject to additional penalties f or old age, survivors', or disability benefits if the person originally owed was convicted of certain crimes related to national security. Likewise, these benefits are suspended for anyone who is convicted of a felony while incarcerated [42 U. S .C. ¤402(x )(l)(A)] (U.S Office of the Pardon Attorney 1996, 11). Military B enefits In certain cases, military benefits will be stripped from people convicted of felonies during or after their service ; however, the majority of felons discussed in this

PAGE 42

34 thesis will not have their benefits stripped Military benefits will be stripped from anyone convicted of mutiny, treason, sabotage, or assisting the enemy (38 U.S.C. ¤ 6104(a)) and anyone convicted of "subversive activities" (38 U.S.C. ¤ 6 105(a)), which are the above, but also convictions like spying for the enemy or abetting espionage (10 U.S.C. ¤ 906; 18 U.S.C. ¤¤ 792 793, 794, 798); illegal production, use, storing, etc. of biological, explosive, nuclear, or chemical weapons, "weapons of mass destruction" ( 18 U.S.C. ¤¤ 175, 229, 831); genocide ( 18 U.S.C. ¤ 1091); terrorism and killi ng a U.S. citizen off U.S. soil or attempted or conspiracy to commit murder ( 18 U.S.C. ¤¤ 2332a, b) Starting at day 61 of a prison sentence, military pensions will stop paying to a felon until released; however, the Secretary may pay the pension to the spouse or child, if qualifi ed (38 U.S.C. ¤ 1505). Also, National Service Life Insurance and Servicemen's Group Life Insurance will not pay for mutiny, spying, treason, or desertion (3 8 U.S.C. ¤¤ 1911, 1954, 1973). Nor is it be paid if the person's death happens as lawful punishment for a crime or military or naval offense except when killed by an enemy of the U.S. (38 U.S.C. ¤¤ 1911, 1954, 1973 ) (U.S. Office of the Pardon Attorney 1996 8 ; U.S. Office of the Pardon Attorney 2006, 3 4 ). The Office of the Pardon Attorney writes, "According to the Veterans' Administration, all veterans benefits are considered gratuitous; therefore, the benefits forfeited under ¤¤ 6104(a) and 6105(a) include pension, disability, hospitalization, loan guarantees, and burial in a national cemetery" (2006, 3 4). Holding Office, Voting, and Jury Service Federally, felons are not allowed to sit on juries, but can hold any federal offic e, including the President of the United States. Voting rights are state by state, per the 14 th Amendment.

PAGE 43

35 Right to H old O ffice The constitution does not prohibit all felons from holding federal office: just treasonous ones and many of those are temporar y bans (e.g. five year ban for advocating the overthrow of the government). This creates a considerable irony: a felon even one who advocated for a revolution can be a federal senator or representative, vice president or president, but they will likely ha ve difficulty getting a federal job, cannot join the military or teach children in many states might not be able to work in their chosen field, etc. U.S. Constitution article I, ¤¤ 1, 2, and 3, as many Americans know, lays out the rules about the representatives of the Congress of the United States. Section two states that representatives must be at least 25 and must have lived in the U.S. at least seven years. Section three state s that senators must be at least 30 and must have lived in the U.S. at least nine years. Article II ¤ 1 mandates that the president must be a natural born citizen, at least 35 years old, and have lived in the U.S. at least 14 years. In short, there are no bans on felons in the Executive Branch of the Federal Government. However, some felonies automatically ban someone from being a member of congress : basically, anyone convicted of treason ( 18 U.S.C. ¤ 2381) bribery (18 U.S.C. ¤ 201(b), 26 U.S.C. ¤ 7213), advocating the overthrow the government (five year ban) (18 U.S.C. ¤ ¤ 2385, 2387) In other words, w ith the exception of crimes in office, treason, rioting, or betrayal of trade secrets, most felons can become members of federal congress even the Preside nt of the U.S. This, however, is not true on a state level. Each state can make laws prohibiting felons from being part of their state congresses either while in prison, for a time

PAGE 44

36 afterward, or for life. Texas, for instance, bans people with felonies from being an elected official unless pardoned According to Tex. EL. Code ANN ¤ 141.001 (a)(4), to be eligible for public office, a person must have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities While this law may seem to some to be illegal on a federal level, Texas continues to follow it. A few other states also ban felons from holding office until their civil rights have been restored: Florida (Fla. Const. art. IV ¤ 4), Idaho (Idaho Const. art. IV ¤ 3) Illinois ( 10 Ill. Comp. Stat. Ann. 5/29 15) Iowa [Iowa Code Ann. ¤ 57.1(2)(c)] Kentucky (Ky. Const. ¤ 150) Mississippi [Miss. Code Ann. ¤ 99 19 35 (2000)] North Carolina (N.C. Const. of 1970, art. VI, ¤ 8) Ohio [ Ohio Const. art. V, ¤ 4 (amended 1976); Ohio Rev. Code Ann. ¤ 2961.01] Utah (Utah Const. art. IV, ¤ 6) and Wisconsin [Wis. Const. art. XIII, ¤ 3 (amended 1996)] (Steinacker 2003, 805) But the remainder of the states do it differently. Five add a waiting period: Georgia requires a pardon and a ten year period since the sentence ended (Ga. Const. art. II, ¤ 2, para. 3); Louisiana [(LA. Const. of 1974, art. I, ¤ 10 (amended 1997)], Oklahoma (Okla. Stat. Ann. tit. 26, ¤ 5 105a), and South Carolina (S.C. Cons t. art. VI, ¤ 1) require a pardon (in the case of South Carolina) or a fifteen year gap after completion of the sentence before running for office; and Rhode Island has a three year waiting period after full completion of the sentence (R.I. Const. art III, ¤ 2), for any felony or any misdemeanor with a sentence of six months or more (Steinacker 2003, 807) Five states permanently deny felons the right to hold office, even if civil rights are restored: Alabama [Ala. Code ¤ 36 2 1 (2001)], Arkansas [Ark. Code ¤ 16 90 112(b)], Delaware (Del. Const. of 1897, art. II, ¤ 21), Indiana (Ind. Code Ann. ¤ 3 8 1 5), and Pennsylvania (Pa. Const. art. II, ¤ 7) (Steinacker

PAGE 45

37 2003, 807). Disenfranchisement Under f ederal law voting rights are mostly state rights, but partially federal ly mandated Article II, section 1 lays out the Electoral College amendment XII supersedes it for vice and presidential elections. The other relevant amendments are XIV XIII, XIX, and XXVI. They state that mal e citizens over 21 cannot be denied the right to vote unless they were previously involved in a rebellion or "other crime" (XIV). The amendment of m ajor interest here is the 14th. As the Office of the Pardon Attorney points out, "The power of the states to deny the right to vote because of participation in a crime is expressly recognized in the Fourteenth Amendment. U.S. Constitution Amendment XIV, ¤ 2" (U.S. Office of the Pardon Attorney 1996, 6). This is a s trong legal opinion b ecause in Richardson v. Ramirez (1974) the Supreme Court held that a state banning felons from voting does not violate the 14 th Amendment Banning someone from voting is only illegal if a group or individual knowingly bar someone from voting when they wou ld otherwise legally have the right to (42 U.S.C. ¤ 1973gg 10). The 14 th Amendment allows for this discrimination; therefore, felons' 14 th Amendment rights are not being denied. However, felons still have the option of moving to one of the many state s that does not ban them from voting after finishing their sentence or attempting a sealing, expungement, or gubernatorial pardon. According to the ACLU, there are six variations in state laws concerning felon disenfranchisement: (1) "some people with felon y convictions cannot vote" ( Alabama, Arizona, Kentucky, Mississippi, Nevada, Tennessee, Wyoming, and Virginia); (2) "all people with felony convictions are permanently disenfranchised" (Florida and Iowa ); (3) "people in prison, on parole and on

PAGE 46

38 probation c annot vote. People with felony convictions can vote upon completion of sentence" ( Alaska, Arkansas, Delaware, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, Nebraska, New Mexico, New Jersey, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, and Wisconsin ); (4) "people in prison cannot vote. Everyone else can vote" ( Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Road Island, Utah, and Washington D.C. ); (5) "people in prison and on parole cannot vote. All other people with criminal convictions, including people on probation, can vote" (California, Colorado, Connecticut, and New York ); and (6) "everyone has the right to vote" ( Maine and Vermont) (American Civil Liberties Union) Jury S ervice Federal law bans felons convicted of a felony from service on federal juries unless they have had their civil rights restored (28 U.S.C. ¤ ¤ 1865(b)(5) 1869(h) and 25 C.F.R. 11.314 ) (U.S Office of the Pardon Attorney 1996, 6). The Supreme Court notes in United States v. Hefner ( 4 th Cir. 1988) that requiring a pardon under ¤ 1865(b)(5) unduly limits the ways in which someone may have their civil rights restored. Because of this, they recommend an affirma tive act in the law to help people restore their civil rights and their ability to meet the eligibility criteria in ¤ 1865(b)(5) (U.S Office of the Pardon Attorney 1996, 6). But little follow up has been done about this federally and like other disabiliti es, jury service varies by state. There are states that have vague lifetime bans with no relief in the state statute s like Alabama ( Ala. R. Jud. Admin. Rule 40; Code of Ala. ¤¤ 12 16 150, 12 16 60 ); states that restore the civil right of jury service right after someone finishes their sentence like Idaho ( Idaho Code ¤ 2 209 ); states that b an felons

PAGE 47

39 from jury service until they are pardon ed or have civil rights restored like Alaska ( Alaska Stat. ¤ 09.20.020 33.30.241 ), Florida ( Fla. Stat. ¤ 40.013 ), and Georgia ( O.C.G.A. ¤ ¤ 15 12 40 15 12 40.1, 15 12 60 ); states where a felon has to petition to have jury service and other civil rights restored like Arizona ( A.R.S. ¤ 13 904 ) or Delaware ( 10 Del. C. ¤ 4509 ); states where just the treasonous in office are e xcluded from jury service like California ( Cal. Const. Art. VII ¤ 8 ); and s tates where you cannot vote for a period of time like Connecticut ( Conn. Gen. Stat. ¤ 51 217 ), which has a seven year ban (from time of conviction) on jury service for felons (American Bar Association) Gun O wnership Felons for the most part, are federally not allowed to own guns The law, however, is nuanced. T his section covers what is necessary to understand a felon's relation to gun rights. Basics As part of the Gun Control Act of 1968 (and since amended), 18 U.S.C. ¤ 922(g)(1), anyone who has been convicted in any court of a crime punishable by imprisonmen t for a term exceeding one year" is barred from possessing transporting, shipping, or receiving a gun or am munition But also, the time of sentencing is a bit skewed because of the phrase "punishable by imprisonment for a term exceeding one year ": some felonies have a punishment of under a year and some misdemeanors have punishments over a year. This phrase act ually goes back in history and stands in for what is now call ed a felony. To clarify this, 18 U.S.C. ¤ 921(a)(20)(B) states that misdemeanors punishable by less than two years are exempt from this and that the decision of what is a felony or misdemeanor is up to the state of conviction This leaves

PAGE 48

40 the federal government out of that issue, but allows them to persecute felons in some states and ignore misdemeanants with equivalent charges, but a different in other states (because of varying state laws) for possessing, transporting, shipping, or receiving a gun because of it (U.S Office of the Pardon Attorney 1996, 14). In short, a ll felons with a few exceptions are banned from touching guns. The felonies that are not covered by the federal gun ban are ( 1) those pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, per 18 U.S.C. ¤ 921(a)(20)(A) ; ( 2) felony convictions from foreign countries, [ see Smal l v. United State s ( 2005 ) ] ; and ( 3) anyone with an expunged, pardoned, or set aside record, or who has had their civil rights restored, are not considered convicted unless the specific expungement, pardon, etc. specifically denies this individual gun right s [18 U.S.C. ¤ 921(a)(20)(B)] ; however, this generally has to be done in the same court that sentenced the felon (U.S. Office of the Pardon Attorney 1996, 14). Can a Felon Have Their Gun Rights Restored? Gun rights are restored by being pardoned or havin g civil rights restored in the state of conviction [18 U.S.C. ¤¤ 921(a)(20); (a)(33)(B)(ii)], both of which are covered in more detail in C hapter T hree. Though it is up to the Federal Courts to ultimately decide if a specific felon has their rights restored after being arrested for gun possession higher courts look to the law of the state to make their decision. Also, under 18 U.S.C. ¤ 925(c) someone can apply to the Attorney General of the United States to have their gun disabilities relived if the disability and the current temperament, reputation, and record of the civilly disabled person is "such that the applicant will not be likely to act in a manner

PAGE 49

41 dangerous to public safety and that the granting of the relief would not be contrary to the pub lic interest." Previously, the ATF was in charge of it, but in the early 1990s, the federal government cut their funding for this project; however, the Supreme Court found this bureaucratic denial to be well within the confines of the law [see United State s v. Bean (2002)]. However, whether or not a state has the right to restore just gun privileges is an open question that the Supreme Court nor any of the circuit courts, has taken a definitive stance on yet. They generally just skirt around the issue of states being able to offer felons gun privileges by finding other ways in which a plaintiff has broken the law Or as Donald Russell more eloquently writes in his majority opinion in United States v. Shoemaker ( C t of App., 4th Cir 1993), W e did not resolve whether this restoration expressly provide[d] that [he could] not ship, transport, possess, or receive firearms by answering simply yes or no. Instead, we focused on the underlying section 922(g)(1) charge and examined whether the conduct tha t the government alleged violated section 922(g)(1) was conduct that was expressly prohibited by the restoration. T his means that there is an argument to be made that if the state has sanctions allowing felons firearms or certain firearms, then federally, they are excluded from the Gun Control act under 18 U.S.C. ¤ 921(a)(20)(B). Similarly, i n United States v. King ( 4 th Cir. 1997) which could have been a fascinating examination of this, asks what does "civil rights restored" mean? Is this to have all of a person's rights restored voting, public office, voting or do specific sanctions about firearms themselves count? However, it was decided that the defendant was still in violation of the state law and was not eligible to have the gun collateral consequence relieved yet (state statute said five years after release, but defendant was still on parole); therefore, he was not covered under 18 U.S.C.

PAGE 50

42 ¤ 9 21(a)(20)(B). I t was also dec ided that even if a state law in North Carolina may have allowed a felon to posses s a gun, "federal law explicitly prohibits the possession of ammunition, while state law refers only to the right to possess firearms [ King ( 1997) ] Meaning that as far as the Supreme Court is concerned, the state must explicitly allow felons to have guns and ammunition. And even then, the Court may find issue with state law. Particularly if one were to look to 18 U.S.C. ¤ 927, which states that, n o provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together (emphasis added) In other words, the federal law should not be thought of as taking the place of a state's right to choose on this matter unless this right to choose creates a "direct and positive conflict" between th e Gun Control Act and state law; however, in that case, it is not clear what wi ll happen other tha n that then some "provision(s) of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter" ( 18 U.S.C. ¤ 927 ). However, in United States v. Shoemaker ( 1993 ), the ruling is that Shoemaker's restoration did not expressly provide that [he could] not ship, transport, possess or receive firearms within the meaning of section 921(a) ( 20), and section 921(a)(20) exempted Shoemaker from the provisions of section 922(g)(1). As a result, the district court erred in denying Shoemaker's motion to dismiss Count III, which charged him with violating section 922(g)(1) by p ossessing firearms in his home Meaning that in this case, Shoemaker was allowed to have firearms in his home because in the state that convicted him and he lived in, his rights to have firearms in his house have been restored because of a state statute allowing it.

PAGE 51

43 Sex Offender R egistr ies At this point, sex offender registries are something that most Americans know about because all states require registration for sex offenses. Interestingly, there are some other statutes tha t require registration for non sexual felony offenses in certain states (see Fla. Stat. ¤ 775.13 and ND. Cent. Code ¤ 12.1 32 15), but these are beyond the scope of this thesis because of their rarity and lack of clear regularity across states (U.S. Office of the Pardon Attorney 2006, 12). Li ke many of the civil disabilities the statutes about sex offender registries are mostly state mandates and not federal laws Meaning that there is some variation around things like crimes requiring registration, duration of registration, penalties for fai lure to register, statutes applying only to federal offenders, whether or not juvenile offenders have to register, and whether or not a person can petition to have the registration disability removed (U.S. Office of the Pardon Attorney 1996, 12 13) H oweve r, there are federal guidelines that states must follow, for instance the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42 U.S.C. ¤ 14071 and 64 Fed. Reg. 5 72, 3590) and the Pam Ly ch n er Sexual Offender Tracking an d Identification Act of 1996 (42 U.S.C. ¤ 14072) (U.S. Office of the Pardon Attorney 2006, 12). While often called Megan's L aws the Wetterling Act sets the minimum national standards for sex offender registries including offenses requiring sex offenders to register, duration of registration, how often to update and verify information, and release of information to the public including maintaining websites with sex offender information using local news media or the Internet to warn of a "sexually violent predator and canvassing the area with photos (U.S. Office of the Pardon Attorney 2006, 12). 42 U.S.C. ¤ 14071(a) of the Wetterling Act allows the U S Attorney General to

PAGE 52

44 "promulgate regulations governing the establishment of state registration programs" mandating that anyone convicted of a crime against a minor or labeled a sexually violent predator register with specific state law enforcement agencies for at least 10 years after the end of their sentence (U.S. Office of the Pardon Attorney 1996, 12 13) States that do not comply with the Wetterling Act face a ten percent reduction in federal law enforcement grants [ 42 U.S.C. ¤ 14071(g ) (2)] (U.S. Office of the Pardon Attorney 2006, 12). Responsibility for having correct information in the registry, however, is ultimately up to the individual sex offenders. State offenders must report their information to the FBI and the state they live in as well as report it to any state that they are about to move to [ 42 U.S.C. ¤ 14071(g ) (3), (i)(1)] (U.S. Office of the Pardon Attorney 2006, 12). Likewise, federal sex offenders and military sex offenders are required to register in the states in which they live, work, or g o to school [ 42 U.S.C. ¤ 14071(i ) (3), (i)(4) and 18 U.S.C. ¤¤ 3563(a ) (8), 3583(d), 4209(a)]] (U.S. Office of the Pardon Attorney 2006, 12). Adopting C hildren or Being a Foster Parent There are many laws varying state by state about who can and who cannot adopt children or be a foster parent. In almost all of the states, there are laws a bout this. These laws vary from the lax [ e.g. Wyoming who has a couple of laws (Wyo. Ann. Stat. ¤ 1 22 104 and Code of Wyo. Rules ¤ 049 040 001) that require petitioners to file an affidavit stating felonies and misdemeanors with adoption petitions, which may or may not be followed up on by the state social services ] to the almost unforgiving [e.g. Alabama which following Ala. Code ¤¤ 26 10A 19; 38 13 3(5) and Ala. Admin. Code

PAGE 53

45 r.660 5 22 .03 runs an FBI background check on all members of the household over 19 and will deny any adoption or foster applications with household members who have misdemeanor charges in the last five years or felonies in the last ten years ] ( U.S. Department of Health and Human Services 2011, 8 65). Most states however, seem to be content with foster or adoptive parents just not having any sexual or violent crimes, domestic violence, crimes against children, o r f elonies in the last five years ( U.S. Department of Health and Human Services 2011, 8 65). Conclusion From this, it is easy to see that there are many civil disabilities of convicted felons and that the disabilities vary from simple to highly complex and from relevant to the charge to completely irrelevant. And there are some odd elements like a felon can be president (com mander in chief of the military ), but cannot own their own firearms or cannot be on the board of a labor union (for 13 years after finishing sentencing). Intuitively, it makes sense to have some civil disabilities related to the charges (e.g. sex offenders not working around children, money launderers not working in banking); however, what about the question of letting someone who ha d a tiny amount of marijuana a decade ago in Ariz ona teach or own firearms? A t this moment, there are four questions: ( 1) what can someone d o to remove civil disabilities? ( 2) are civil disabilities wrongful discrimination? ( 3 ) when are civil disabilities not wrongful discrimination? and ( 4) are civil disabilities equivalent with civil death? These four questions will occupy most o f the rest of this thesis. N ow, I turn to the few ways in which someone can escape civil disability.

PAGE 54

46 CHAPTER III OVERCOMING CIVIL DISABILITIES Now that I have discussed the individual civil disabilities in detail, this chapter will detail how felons can overcome civil disabilities Presen tly, there are only three ways to remove long term or permanent civil disabilities : sealin g or expunging, gubernatorial pardon, and presidential pardon; however, I also explore a few alternative ideas that may offer hope in the future : state by state p ardon offices, market incentives civil disabilities as a violation of the right to privacy, civil disabilities as cr uel and unusual punishment, and ex offenders considered as a suspect c lass under equal protection. Then I discuss identity politics for felons. This is a tricky area because those who claim the label felon mus t take the previous baggage and negative connotations it has instead of trying to hide their identity by "pass ing as a "NORP NORP stands for Normal Ordinary Rational Person. This is a term the Colorado State Department of Corrections uses to differentiate prisoners/criminals (who have "criminal thinking") from everyone else (NORPs) (Colorado Department of Corrections 2013, under "The Shield of Professionalism" slideshow). There, I explore whether or not a call for solidarity and (a) large scale social movement(s) would be helpful. But given the advantages of "passing the question is, will it? Current Ways to Overcome a Felony At the moment, th ere are three ways to remove the civil disabilities from a felony or as the law often calls it, "having civil rights restored" a presidential pardon,

PAGE 55

47 a gubernatorial pardon, and sealing/expunging. Each has their limitations, strengths, and weaknesses. This section will explore each in detail. Presidential Pardons A presidential pardon restores all civil rights and removes all disabilities related to the conviction but is only applicable to federal felonies. State felonies cannot be removed by a presidential pardon, but it can help the state convicted felon to regain some federal rights like sitting on a federal jury However, a presidential pardon does remove som e specific federal disabilities if still applicable after a getting or being denied a state pardon, sealing, or expungment F or instance a person who has received a presidential pardon cannot be deported for that criminal conviction (8 U.S.C. ¤ 1251(a)(2)(A)(iv)), will receive old age or disability insurance denied because of court impos ed restrictions (42 U.S.C. ¤ 402(u)(3)), and will have veterans' benefits removed for "subversive acts" restored (38 U.S.C. ¤ 6105(a); 38 C.F.R. ¤¤ 3.903, 3.904) (U .S Office of the Pardon Attorney 1996, 13). Gubernatorial P ardon Many states allow for a felony to be removed or lessened with a pardon from the governor. For instance, Colorado allows the governor to remove all legal disabilities, including the firearm ban, and basically restores a felon's civil rights (Colo. Const. Ar t. IV, Sec. 7) Sealing and Expungement In some states, a state felony conviction can only be removed through sealing or expungement. For instance, in California, a felony cannot be permanently removed by a gubernatorial pardon and thus will still come up on background checks. Although, this

PAGE 56

48 will allow them to own guns (unless a violent felon) sit on a jury, and becom e a parole or probation officer, a pardon is a last resort and only really for felons who cannot have their records sealed or exp unged (Calif ornia Penal Code 4852.17). Each state has their own restrictions about who can and cannot apply for sealing or expungement. For the most part, it means going back to the original sentencing court after many years "off paper" without accruing any other char ges accompanied by an attorney that specializes in sealing and expungement who makes a case that the felon has been punished long enough and should be considered a full citizen again This laborious and complicated process means this procedure will likely cost a felon a few thousand more dollars on top of all the penalties they have already paid and potentially some processing and paperwork fees for just a chance to be declared reformed in the eyes of the law A Note About Civil Rights Restoration Depending on the state or federal statutes, a person may or may not have some or all of their civil rights restored after a conviction of a felony. For instance, in my state of Colorado, after completing their sentence and probatio n, half way, or parole, a felon is able to sit on a jury, vote, and run for office but is still a convicted felon, subject to the r emaining litany of disabilities. These disabil ities that I described in previous chapters make life more difficult for many felons by putting often arbitrary restrictions on their lives E ven someone given partial relief from disabilities will still be barred from sit ting on a federal jury because 28 U.S.C. ¤ 1865(b)(5) says that to sit on a federal jury, a felon must have h ad their civil rights fully restored. The Pardon Office writes that this "has generally been interpreted by federal courts and the Administrative Office of the United States Courts to require an affirmative act by the state (such as pardon or amnesty)

PAGE 57

49 before a felon can sit on a federal jury ( U.S Office of the Pardon Attorney 1996, 13) This means that if someone lives in a state like Colorado where felons can sit on state juries after completing their sentence, they still cannot sit on a federal jury until they have their civil rights restored through a pardon or expungement. United States v. Hefner (1988) rule d that some affirmative act recognized in law must first take place to restore one's civil rights to meet the eligibility requ irements of section 1865(b)(5) ( U.S. Office of the Pardon Attorney 1996, 13) Future Possible Ways to Overcome Civil Disabilities : State or Local Level Now that I have covered the few ways there are to remove civil disabilities, I will now discuss a few possible future alternatives for at the social, state, local level While these methods do not currently work to remove civil disabilities, there is some hope for a few of them to help in the future. These alternatives are a state by state pardon attorney, market incenti ves and sentencing. State by State Office of the Pardon Attorney To deal with the issues of civil disabilities and civil rights restoration, the federal government has The Office of the Pardon Attorney. They do much of the legwork of the presidential pard on covered above ; however this office and federal pardons only help federal prisoners because state criminal charges are in the jurisdiction of the state that charged the criminal. T here is nothing stopping individual states from starting their own office of the pardon attorney to help felons become full citizens again. If they were to do this, it would not only greatly lessen the burden of individual courts, but would open the space for more felons to have their records seal ed expunged, or pardoned.

PAGE 58

50 Market Incentives While some would rightfully argue that some of discriminations facing felons are business related (e.g. housing and job discrimination centered on business liability and trust ability of tenants and employees ) and the economic gains of the 1990s were specifically because of mass incarceration, there are some other facets of capitalism that could help, rather t han hinder the lives of felons That said, discrimination, in a certain sense, could be read as antithetical to capitalism because it can hurt business. In this case, to discriminate against felons creates a situation in which there is a smaller labor force less possible customers and less possible business gr o w th Furthermore, the promotion of discrimination has been argued by the Supreme Court to harm the free flowing of business in a few cases For instance in The H eart of Atlanta Motel, Inc. v. United States (1964) the Court decided that the Heart of Atlanta Motel must accept business from all races despite local segregation laws in Atlanta Because of its proximity to interstates and its clientele being mostly fro m out of state, if the motel and similar motels did not accept all races, it would create a large barrier to the free movement of intrastate business transactions In a similar way, not being able to work in certain industries and live in certain areas prevents business growth from happening by hindering possibilities like a larger pool of laborers by including felons (which could lower the cost of labor) felons br inging their experiences and knowledge to business or work related opportunities (e.g. ex hackers helping write anti hacking or anti virus code or felons as teachers for "at risk" schoo ls who can offer wisdom learned through making mistakes to the kids wh o need it the most), more growth in the rental housing market (because so few places rent to felons currently, allowing felons to rent would drastically increase the possible tenants for

PAGE 59

51 rentals and reduce illegal sublets ), an increase in construction (to supplemen t the increased de mand in rentals) etc. While there are many possible ways in which opening markets to more people could expand labor and business, these are just a few. Sentencing C ivil disabilities if so important, could be applied during sentencing. Given that constitu tionally, our system is setup to punish people through the judicial branch only civil disabilities can easily be read as a "bill of attainder which is essentially where the executive branch decides to make laws adding additional punishments to criminal charges and are federally illegal ( U.S. Const. Art. 1 ¤ 9) Instead, the original sentencing courts themselves could apply civil disabilities. It makes more sense to have tailored disabilities to specific offenses (e.g. the sex offender registry or creating laws like if someone runs a background check, they can only see charges relevant to the issue or job at hand) or to add disabilities as part of specific sentence (for instance, person xyz cannot do xyz and can be arre sted on the spot and sentence d for violating this like a restraining order or rules of probation, parole, or a half way house ) as this would minimize crime and recidivism by offering felons opportunities to rejoin the community at large, but keeping those who may pose a dan ger in certain areas out of those areas For instance, it makes perfect sense to prevent pedophiles from teaching K 12, but it is not as clear cut when discussing whether or not someone with a felony theft, drug possession, or even a diff erent type of sex offender for instance, someone with an indecent exposure charge who was seen drunkenly peeing in a bush at a party in college and arrested should or should not be a teacher These are the kinds of questions we as a country need to look at : what actually determines the merit of someone's character? How can this accurately be

PAGE 60

52 judged ? An alternative to this would be to create crime specific on ly civil disabilities; however, this situation should only happen if felons are offered suspect status (I discuss suspect status later in this section) and these laws could always undergo strict scrutiny. Future Possible Ways to Overcome Civil Disabilities at the Federal Level While most of the solutions for civil disabilities would necessarily have to happen at a state or county level in our current system, the federal Supreme Court could alter this situation if a case were to somehow arise for them that afforded the opportunity to consider civil disabilities under judicial review If this were to happen, the judges may or may not make a monumental argument in favor of felons having more of their rights ret urned to them; however, given the following and my own pessimism, I do not foresee this happening, but rather see this section as an exploration of what would have to happen in order for the Supreme Court to declare civil disabilities to be unconstitutional It is much better thought of as one more exploration of the inability to escape civi l disability than as a hope for a changed future First, I write about the 8 th Amendment (cruel and unusual punishment) and then the 14 th Amendment for the case that felons should be considered a suspect class under equal protection doctrine Are Civil Disabilities Cruel and Unusual Punishment ? The 8 th Amendment reads "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This raises the question are civil disabilities cruel and unusual punishment? While some people would say that civil disabilities are not punishment [e.g. Kansas v. Hendricks (1997), which argued that civil disabilities/collateral consequences are civilly imposed; therefore, are not a nother type of legal punishment] a quick look at Black's Law Dictionary makes this argument

PAGE 61

53 highly questionable As quoted in chapter one Black's says, civil disability (18c) The condition of a person who has had a legal right or privilege revoked as a result of a crimin al conviction, as when a person's driver' s license is revoked after a DWI conviction (9th ed. s.v. "disability"). Is taking away rights or privileges cruel and unusual punishment? That is an interesting question I cannot quite answer because the civil disability definition does not discuss whether or not civil disability is punishment ; however, earlier, I wrote that being civilly disabled was to have collateral consequences. If rephrased, a better question can be posed : i s the conditi on of having collateral consequences (being civilly disabled) cruel and unusual punishment? Black's writes, collateral consequence. A penalty for committing a crime, in addition to the penalties inclu ded in the criminal sentence. An example is the loss of a professional license. When a collateral consequence exists, a defendant's appeal of a conviction does not become moot when the criminal sentence is completed (9th ed. s.v. "collateral consequence") This raises question two, is a penalty a punishment? Black's says, "penalty. (15c) 1. Punishment imposed on a wrongdoer, usu. in the form of imprisonment or fine (9th ed. s.v. "penalty"). A t this point, I can more than safely argue ( 1) if a person has collateral consequences they have civil disabilities (as civil disabilities are the condition of having collateral consequences) ; ( 2) having 1+ collateral consequence is a penalty ; and ( 3) a penalty is a punishment ; therefore civil disabilities are a form of punishment. While this philoso phic exercise allows me to discuss cruel and unusual punishment in this context it still does not help with question one: are these punishments (collateral consequences/civil disabilities) cruel and unusual punishment or are they decent and usual punishme nts? Supreme Court Cases About Cruel and Unusual Punishment Probably the

PAGE 62

54 most important aspect of cruel and unusual punishment jurisprudence for our purposes is the proportionality principle or the idea that punishment should be proportional to the crime committed. One of the most famous Supreme Court cases about the proportionality principle is Kennedy v. Louisiana (2008) in which it was decided that the death penalty was too cruel and unu sual for an aggravated child rape and sodomy one which tore the girl so badly that she needed emergency medical attention, but was not intended to kill, nor killed the child. Similarly, this is why Robinson v. California (1962) overturned a man's 90 day sen tence for being a drug addict; Enmund v. Florida (1982) argues that the death penalty is not proportional in the case of a man who was a getaway driver for a robbery and murder he did not anticipate or participate in (one of the first proportionality p rinciple cases); and Trop v. Dulles (1958) argues that it is unconstitutional for the government to revoke the citizenship of a citizen as punishment establishing the necessity of having "evolving standards of decency" around punishment. Tison v. Arizo na ( 1987) however, redefines the proportionality principle by determining that if someone is involved enough in or their actions negligently created the conditions for murder, then they too can be given the death penalty In this case, two sons break their fa ther from jail and the father and his cellmate kill people on the way out of the prison. The sons are held liable for their part in the deaths of the murdered. However, sometimes, the Court will allow a harsh sentence through anyway. For example, Harmelin v. Michigan (1991) ruled that a life sentence without the possibility of parole was an appropriate punishment for 672 grams (a little under a pound and a half) of cocaine. Supreme Court Cases About Civil Disabilities While there are quite a few cases about cruel and unusual punishment, there are only a small group of cases about

PAGE 63

55 civil disabilities the majority of which are about the deportation of immigrants convicted of felonies or people who were unaware of civil dis ability before sentencing I n this section, I discuss a variety of cases about civil disabilities to explore whether or not an argument could be made for civil disabilities as cruel and unusual punishment following any older Supreme Court rulings. No Due P rocess Rights to Warn of Collateral Consequences The first similarity is that in general, the due diligence about the ramifications of a sentence (i.e. collateral consequences and civil disabilities) is solely that of the defendant to know and understand : court s nor the defense or district attorneys, have any due process obligation to disclose civil disabilities or collateral consequences to defendants wit h the exception of immigration, which was added to the 6 th Amendment in 2010 (but only for cases after 2010 and not retroactively) This duty to warn of deportation was added to the 6 th Amendment after Padilla v. Kentucky (2010) was heard in the Supreme Court and they decided to overturn the Kentucky State Supreme Court's decision that deportation was okay because it was an indirect collateral consequence of conviction, arguing that attorneys must now inform their clients about the possibility of deportation because of a felony conviction. What is interesting is that this decision i s different from the C ourt's stance on this issue for the other civil disabilities and for immigrati on up to this point in history even retroactively [ for example, denying Chaidez v. United States (2013)] Maybe it was because Padilla was a war veteran, ha d lived in the U.S. for over 40 years, and was told by his attorney that his guilty plea would not cause him to be deported. The latter option seems to be the most plausible given similar cases like United States v. Russell (Dist. of Col. Cir. Ct. App. 1982) wherein the District of Columbia Circuit Court

PAGE 64

56 overturned the original ruling because prosecutors explicitly told Russell that he would not be deported upon conviction before he entered his plea, which is a lie. Otherwise, however, there are many cas es in which this same exact argument (bad council, w ere not informed of deportation, civil disabilities, therefore, want a retrial) is denied by the Supreme Court or the Court of Appeals : United States v. Sambro (D.C. Cir. 1971) Michel v. United States (2d Cir. 1974) United States v. Gavilan (5th Cir. 1985) United States v. Campbell (1985), United States v. Yearwood (1988), United States v. Del Rosario Ct. of App., Dist. of Col. Cir. 1990) Varela v. Kaiser (10th Cir. 1992) United States v. Banda (5th Cir. 1993) Contreras v. Schiltgen ( 9th Cir. 1997 & 9th Cir. App. 1998 ), United States v. Mercurris (1999), Chong v. District Director I.N.S. (3d Cir. 2001) and United States v. Parrino ( 2d Cir. 1954) wherein contra the later Padilla (2010) the Court of Appeals denied a man's plea that his lawyer told him he would not be deported for a felony conviction. Similarly, state Supreme Courts have consistently voted contra Padilla (2010) : State v. Ginebra (Florida 1987), Mott v. State (Iowa 1987), S tate v. Santos (Wisconsin 1987), Com. v. Frometa (Pennsylvania 1989), and People v. Ford (N.Y. App. Div. 1995) In United States v. Campbell (1985), the Court stated d eportation is admittedly a harsh consequence of a guilty plea, but so are many other collateral consequences. It is highly desirable that both state and federal counsel develop the practice of advising defendants of the collateral consequences of pleading guilty; what is desirable is not the issue before us. But even though it is highly undesirable, these practices were not abolished. And in United States v. Banda (1993), it says per Gavilan (5th Cir. 1985) defendants have no due process right to be informed of the collateral consequences of criminal proceedings. That principle applies even to harsh collateral consequences, such as loss of the right to vote, to travel abroad, or to drive a car. Deportation is concede dly a harsh collateral consequence. However, loss of the rights to vote, to travel, and to do a myriad other things a

PAGE 65

57 common citizen may do are also harsh consequences. Failure by counsel to advise a client of these or any other collateral eventualities wo uld not constitute a Sixth Amendment violation just as failure by the court to inform of such collateral consequences does n ot violate Fed. R. Crim. Proc. 11. Counsel and courts likewise have no duty to disclose any of the other civil disabilities. According to the Supreme Court and the Federal Court of Appeals, i gnorance of no civil disabilities is a valid reason to remove a guilty plea [ Meaton v. United States ( 5th Cir. 1964), Trujillo v. United States ( 5th Cir. 1967), Wadley v. Davis ( 5th Cir. 197 1) Johnson v. United States (1972) ] Nor will ignorance of the disabilities help someone avoid collateral consequence s like losing a driver's license after getting a DUI [ Moore v. Hinton ( 5th Cir. 1975)] discharge from the military [ Redwine v. Zuckert ( D.C. Cir. 1963)], going to an institute rather than a prison [ Cuthrell v. Director, Patuxent Instiution (1973)] getting fired [ State v. Heitzman (New Jersey 1987)], new charges affecting parole or future charges [ Sanchez v. United States (1977), United St ates v. Probber ( 2d Cir. 1999), Major v. State ( Fla. 2002)], or mandatory parole [ Lane v. Williams (1982)] Reiterating the points of other judges above, Hinton ( 5th Cir. 1975) focused on the disability of driving, writes o f crucial importance here, however, is the fact that the Alabama Department of Public Safety, not the court, deprives the defendant of his license, acting under authority of 36 Ala. Code ¤ 68. The court merely accepts the defendant's plea, and sentences him to a fine and/or imprisonment. The Department of Public Safety then institutes a separate proceeding for suspension of his license; this suspension is not, therefore, punishment imposed by the court as a result of the guilty plea, but a collateral consequ ence of the defendant's conviction. And this sums it up: the court has no obligation to tell someone about civil disabilities/collateral consequences because they are civilly imposed and therefore, out of the hands of the legal system itself Civil disabi lities are no excuse to alter sentences or rescind guilty pleas and the burden of knowledge is in the hands of the person who pleads

PAGE 66

58 guilty who in their guilty plea must state that they are intelligent enough to understand what is happening, know the ramif ications, and still want to plead guilty even though the system is far too encompassing for the average person to understand all of it. And even though these civilly imposed laws are similar to the illegal bill of attainder. Civil disabilities are not elig ible for habeas corpus Second, civil disability is not being held in custody. Therefore, civil disability is never a case of being "held" for anything and thus, cannot be treated as a direct legal punishment. The Supreme Court argues repeatedly that civil disability must be thought of as indirect legal punishme nt that arises from civil law s, not from courts, sentences, prisons, probation or parole. This applies even to the sex offender registry as in Williamson v. Gregoire ( 9th Cir. 1998). Bein g a registered sex offender is not being held in custody. After all, a sex offender just has to register for the registry by detailing where they are staying not stay anywhere specific like they would if imprisoned "Third Strike" laws are not always crue l and unusual Third, the Court has never sided completely against third strike laws and has sided with them in some cases, for example Rummel v. Estelle (1980). However, in some cases, for example Solem v. Helm (1983), the Court will side (5 4 in this ca se) that a specific third (or more) strike rule is cruel and unusual punishment. In Solem, a man is convicted of writing a check from a fictitious account, giving him seven non violent felonies and triggering a mandatory life sentence in his home state of South Dakota. The majority argues that using a modified version of the Proportionality Doctrine from Enmund v. Florida (1982) in this specific case, a life sentence is cruel and unusual punishment because his crime is so small The di ssenters of course argue that this is judicial overreach by the Court. In their opinion,

PAGE 67

59 this is a state issue the federal government should stay out of Seemingly fundamental rights are not protected for felons Fourth, people have tried to petition the Supreme Court for judicial oversight on individual civil disabilities with little to no luck. Probably the most famous of these cases is Richardson v. Ramirez (1973), which argued that a state barring a felon from voting in state and federal elections is n ot a violation of the 14 th Amendment ; however, there have been several others In United States v. Green (8 th Cir. 1993) it was argued (and rejected) that felon disenfranchisement is irrational, which violates the fourteenth amendment's equal protection clause (covered in detail in the next section) because it offers the Supreme Court the po wer to veto any irrational laws ( U.S. Office of the Pardon Attorney 2006, 1). Likewise, there have been a few cases in federal and state courts in which it has been ar gued that felon disenfranchisement is racially discriminatory because of the disproportionate amount of racial minorities that have felony charges, for example, Baker v. Pataki (2d Cir. 1996), Wesley v. Collins (6 th Cir. 1986), Farrakhan v. Locke (E.D. Was h. 1997), and Texas Supporters of Workers World Party Presidential Candidates v. Strake (S.D. Tex. 1981) (U.S. Office of the Pardon Attorney 2006, 1). The sex offender registry is not cruel and unusual punishment or a violation of privacy Fifth, in Peopl e v. Adams (N.Y. App. Div. 1990) it is decided that the sex offender registry is not cruel and unusual punishment. In fact, it is just like all the other civil disabilities. While this does not preclude the argument that all civil disabilities are cruel and unusual punishment, it definite ly assumes it as the basis for this decision. T he right to privacy was also questioned and denied in relation to sex offender registries [ Russell v. Gregoire ( 9th Cir. 1997)].

PAGE 68

60 Civil disabilities are not ex post facto punishments bills of attainder, or dou ble jeopardy Sixth civil disabilities, at least thus far, are not considered ex post facto laws (c.f., Article 1, section s 9 10 of the Constitution) An important case that considered this issue is Kansas v. Hendricks (1997). Hendricks and Quinn, repeat child molester s were civilly committed to a mental institution after completion of their sentence under Kansas's Sexually Violent Predator Act because they were deemed unable to control their urges to molest children and therefore, unfit to live in socie ty The Supreme Court determined that the commitment is civil; therefore, ex post facto or double jeopardy is irrelevant because the commitment is not part of a criminal proceeding, but rather a civil action. In Russell v. Gregoire ( 9th Cir. 1997) and Smith v. Doe (2003) it was found that sex offender registries do not violate the ex post facto clause for similar reasons. This argument can be generalized to all civil disabilities: civil disabilities are civilly imposed and therefore, not part of crimin al proceedings ; therefore, they are not punishment. Thus, they cannot be cruel and unusual punishment. [ Though, it should be mentioned that they voted contra to this in Ball v. United States (1986 ) saying that a felon convicted of stealing and selling a gu n cannot also be charged with possession of a firearm (which is a nother felony for a felon). ] To sum this section up it is rather clear that an argument that civil disabilities are cruel and unusual punishment or a violation of any other law will probably never be struck down unless new Supreme Court Justice s are elected that are sympathetic t o the plight of felons. While thi s is highly unlikely given American society's distaste for felons in general maybe some judges could be swayed to the side of felon rights. The fol lowing sections explain one of the best justifications fo r felon rights that I have seen in my

PAGE 69

61 research. Equal Protection and Suspect Status : The Ironically Named Saving Grace ? This section is a highly condensed retelling of Ben Geiger's argument in "The Case for Treating Ex Offenders 4 as a Suspect Class (2006). He makes the case that given the massive amo unt of civil disabilities facing an ex offender felons can be said to exist within a matrix of oppression equivalent to or even surpassing that faced by immigrants, religious minorities, and ethnic minorities ("a digital scarlet letter") ; therefore, the y should be afforded an equivalent level of judicial oversight: strict scrutiny. However, while that sounds simple in a nutshell, it is quite a complex ordeal and Geiger's argument is nuanced. I believe, however, that it is worth delving deeply into G eiger 's article because not only does it offer one of the clearest cases for felons deserving a protected status in the U.S., but it also details many of the problems with trying to help felons to gain more rights and encapsulates much of what I have written ab out in this thesis as a whole A Quick Explanation of Equal Protection Doctrine Equal Protection Doctrine is the name for a certain set of judicial scrutiny for minority groups that the Supreme Court has argued are an inherent part of the Fourteenth Amendment, ... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction th e equal protection of the laws. United States v. Carolene Products (1938) is the first case to argue that the Fourteenth Amendment allows the court to offer "special scrutiny to classifications based on certain 4 N.B. : Geiger uses the term ex of fender rather than felon. The terms will be used interchangeably throughout this section.

PAGE 70

62 group traits" to prevent undue prejudice against minority groups. This happens in footnote four and is thus known as the "Footnote Four Rationale" (or the Carolene Product s Rationale). It reads, prejudi ce against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly m ore searching j udicial inquiry. (quoted in Geiger 2006, 1208) This Supreme Court decision to protect "discrete and insular minorities" is the beginning of equal protection because it defines one of the criteria d iscrete and insular of what creates a class of people that are discriminated against within the law. The assumption is that laws are made without prejudice in mind, but sometimes prejudice can slip in t hrough malice or accident. I f a law (or laws ) is thought to be prejudicial, the Supreme Court can l ook at whethe r or not the law is prejudicial; however, while this opens the door for many prejudicial laws to be considered under strict review many are not because all that needs to be shown is that there is a rational, legitimate government in terest being served by the law(s) to pass rational review and if they were passed, of course there is usually some argument to be made for it Thus most laws will pass rational review as long as discriminations are not over t or are against a population deemed worthy of discrimi nation like Felons, c.f. Richardson v. Ramirez (1974) which straightforwardly upholds a state's right to disenfranchise felons For the most part, the Court will only deem a law suspect if the population in question meets a series of criteria know as the Traditional Indicia of Suspectness ." If this happens, then there are two levels of heightened scrutiny: intermedia te scrutiny and strict scrutiny; however, it is very difficult to be awarded suspect status because the Indicia are so confusing and muddled ( Geiger 2006 1206 7). Now that this a bit more clear, I will explore if felons could be

PAGE 71

63 considered a suspect class. Are Felons a Suspect Class? At the current moment, felons are not considered a suspect class, but the Supreme Court has struck down some civil disabilities for being vague, inconsistent, blocking rehabilitation, or blanket banning felons from public employment ( Geiger 2006 1215). Wh ile there is hope for the future generally, the Court does not strike these laws or cases down as discussed in the last section For the most part, the Court generally upholds laws that are aimed at a certain type of offender or offers some governmental b enefit, citing the safety and security of the people and the state ( Geiger 2006 1215 6). And in the unusual cases in which the Court has struck down a tailored collateral consequence through rational review, "the criminal conviction is often, but not alwa ys, minor, nonexistent or old" ( Geiger 2006 1216). And as Geiger points out, it is pretty obvious that t hese cases suggest that courts rarely depart from true rational basis review despite current equal protection doctrine" ( 2006 1216). The more common response is that collateral consequences are either thought to be assumed as a ramification of a sentence albeit separate and civilly imposed and therefore incontestable or are seen as outside the jurisdiction of the court because they are social, economi c, or private matters rather than legal matters For instance, until 2010 ( Padilla ) the Court repeatedly decided that deportation is a collateral consequence of conviction and not a direct consequence ; therefore, the defendant d id not have to be made aware that they would most likely be deported before making a guilty plea in order to do so willingly and knowingly Geiger argues that civil disabilities (1) can be shown to often be wrongful discrimination, (2) affect many facets o f a felon's life forever, and as a whole (3) become many differing

PAGE 72

64 shades of civil death. However, the Court has yet to think that civil disabilities as a whole are an issue worth defending e ven for fundamental rights like full disenfranchisement, which th ey argued was justified in Richardson v. Ramirez (1974) by stating that the intent of the authors of the Fourteenth Amendment was to allow states to ban felons from being able to vote if they wanted to ( Geiger 2006 1217). N ow, I detail Geiger's case for why felons should be considered a suspect class. There are four major are as necessary for a group to be declared a suspect status: immutability, history of class based discrimination, political powerlessness, and inherent suspicion. The following section s will discuss each one and explain why felon should be considered a suspect status. Is a Felony Immutable? Immutability describes a trait that is impossible or at least extremely difficult to alter. T he harder it is to escape these traits, the more significant the discrimination face d If a person can easily exit a discriminated against group, it is hard to make the case that their d iscrimination is significant. For example, if a student is being bullied for being gothic, they could simply depart the subculture and a lleviate their discrimination. While one could make the argument that people have the right to free expression or are born goth ic this is bey ond the scope of this discussion and a more abstract level of freedom than argue d for herein In many of the cases of Equal Protection, the immutable traits are traits people are born with and cannot change like race, nationality, ethnicity, or gender. However, some immutable traits can change : aliens can naturalize or leave, illegiti mate children can be adopted or legally acknowledged, people can change sex or gender, and science has proven that race is actually socially constructed because the differences amount to skin pigment and facial structure (therefore, society could change th at as well).

PAGE 73

65 "All of which begs the significance of immutability qua unalterability" ( Geiger 2006 1212). Given this, the Court has created criteria from which to judge if a specific case ought to be scrutinized. There are four areas that are scrutinized if a law is about an immutable trait: relation to accidents of birth, relationship to individual responsibility, direct correlation between law/judgment in question and individual ability, and a history of class based discrimination ( Geiger 2006 1211). Th e following will explain each one except for a history of class based discrimination: it is covered in the next section Accidents of Birth M any immutable traits are "accidents of birth" and to discriminate based solely on birth with a certain trait is u nfair. One of the first discussions of immutability arose in Frontiero v. Richardson (1973) T o say that a wife is not entitled to military dependent spouse benefits for her dependent husband is to violate the norms of fairness in a way that reifies previo us gender stereotypes because a woman should be treated equally to men who are entitled to benefits for their dependent wives the breadwinner is the breadwinner regardless of sex ( Geiger 2006 1211). But this is not to say that immutable traits are always something you are born with, but rather that discrimination made upon accidents of birth are more likely to be irrelevant to the legal burdens based upon them ( Geiger 2006 1224). Not all immutable traits are accidents of birth: for instance, religious aff ilia tion is a suspect class. J oining the class at birth is not necessarily a requirement for suspect status. The experience of the traits needs to just be "sufficiently unalterable to create a real barrier to exit from the class" ( Geiger 2006 1218). Relev ance to Individual Responsibility Second, Geiger writes, "The argument that lawbreakers deserve whatever punishment they get, whenever they get it, for no

PAGE 74

66 other reason than that they broke the law is perverse and simplistic" ( 2006 1221). There is no one size fits all model for punishment (otherwise, there would be little need for the criminal justice system as it currently exists ): responsibility varies from crime to crime among ex offenders just as sentences do. Further, breaking the law does not ju stify perpetual punishment in all or even most cases and in those cases that it does, the criminal justice system itself is able to handle that with life sentences or the death penalty. In Weber v. Aetna Casualty & Surety Co. (1972) which decided that leg al burdens must bear relationship to individual responsibility, not just be from an "accident of birth ." In Weber and the similar Plyler v. Doe (1982) the Court decided that it was unconstitutional to deny an illegitimate child worker's compensation benef its from a dead father and that Texas schools cannot exclude illegitimate children. Children do not choose their parents and thus should not be given legal burdens for something they are not responsible for. Geiger writes "this would violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility'" ( 2006 1210). But what about civil disabilities? What is the relevance to individual responsibility of civil disabilities ? Civil disabilities often have little connection to an individual ex offender's individual responsibility. For instance, someone convicted of a felony drug possession would have the same amount of civil disabilities as a person convicted of grand theft, m urder, manslaughter, rape, or child molestation (sans the sex offender registry for the latter two and the extra disabilities around government benefits for the drug offender ). There are two reasons that the legal burdens of civil disabilities have little to do with individual responsibility for ex offenders: ( 1) the criminal justice

PAGE 75

67 system assesses and punishes for the crime and the person's individual responsibility for it with the specific sentence a nd ( 2) felons vary greatly in their moral blame worthiness even across crimes (e.g. the moral blameworthiness of someone who shoplifts for fun vs. someone shoplifting a loaf of bread to feed their family) Individual Responsibility for Crimes is Assessed Through the Criminal Justice System The irony of the whole institution of civil disabilities is that by the criminal justice system's own standards, a felon, as an ex offender is done : they ha ve paid their "debt to society," which is why they are ex offenders! Furthermore civil disabilities poorly serve the penological goals of deterrence, denunciation, retribution, r ehabilitation, and incapacitation" ( Geiger 2006 1220). Similarly, civil disabilities have limited value as a deterrent because as I wrote above, most people are not aware of them or their consequences before sentencing. A nd after sentencing, they make it difficult for felons to acclimate to life "on the outside which defeats their purpose (s) ( other than perpetual punishment ) by creating conditions that foster recidivism and thus crime Further civil disabilities do little to stop repeat offenders because they are neither deterred nor stopped from committing crimes by civil disabilities when free. In th e best case argument for them civil disabilities as a whole may lower specific crime rates (e.g. pedophilia) in areas that need to be protected like schools, jobsites, public housing, etc. by not allowing felons to join those communities and have easy ac cess to recidivate ; however, only at the expense of denying other felons many opportunities to reclaim their citizenship and place in their communities through jobs, housing options voting, joining the military, being union leadership, participating in non familial childcare or teaching, etc. This permanent othering and inability to fully re enter society blocks a felon's ability

PAGE 76

68 to become a whole person again, increases crime and recidivism, and hinders the full expressions of freedoms this country purports to offer to its citizens. Bill Of Attainder The U.S. Constitution has a prohibition against bill s of attainder (laws that "inflict punishment without a judicial trial"), stating that punishment be given through "the criminal justice system, with its attendant protections of right to counsel, trial by jury, and due process standards" ( Geiger 2006 1220). In fact, this goes along with "the Framers intent that the Legislative branch does not have the ability to rule upon the blameworthiness, of' or to punish people ( Geiger 2006 1221). In United States v. Brown (1965) The Court writes that, the Bill of Attainder Clause ... reflected the Framers belief that the Legislative Branch is not so well suited to the ta sk of ruling upon the blameworthiness, of, and levying appropriate puni shment upon, specific persons'" ( Geiger 2006 1221). The judge s quotes Alexander Hamilton, n othing is more common than for a free people, in times of heat and violence, to gratify mome ntary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature.... If the legislature can di sfranchise any number of citizens at pleasure by general descriptions ... if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe The name of liberty applied to such a governme nt, would be a mockery of common sense ( quoted in Geiger 2006 1221) How interesting would it be if this founder father's intent never to disenfranchise were heard in Richardson v. Ramirez (1973) ? Would it have changed the outcome of that case? Further, f rom a legal perspective, anti crime legislation is almost always set up as a reaction to gruesome crimes; however, civil disabilities are often a poor way to do this because they are immoral, ineffective as a deterrent, give the Legislative branch Judicia l powers, are a poor way to judge character or individual responsibility, and should be used

PAGE 77

69 to give anyone more legal burdens only in very rare circumstances ( Geiger 2006 1221). Ex Offenders Exhibit Tremendous Variability in Moral Blameworthiness There are only two reasons to consider that ex offenders would have any further responsibility for their crimes after finishing their sentences and those are ( 1) further retribution is necessary (but why not incarcerate them or keep them on probation or parole longer?) and ( 2) there is a need for public safety because of incomplete rehabilitation; however, as mentioned above, civil disabilities are applied unequally, which means that they punish people who are not fully deserving of some or all of the punishment s T his continual punishment may paradoxically increase risk s to the public's safety by creating a situation in which felons are more likely to commit crimes because of lack of legal opportunities for them ( Geiger 2006 1222). T his implores one to ask the question do civil disabilities protect society? 76.6 % of prisoners recidivate within five years of release 43.4 % by the end of the first year ( U.S. Bureau of Justice Statistics 2014 8 ). Is this because criminals are mostly bad people or is this because there is such a lack of legal opportunities for them to live a normal life? A study shows that over five years property offenders (82.1%) and drug offenders (76.9%) were the most likely to recidivate (violent offenders recidivate at 71.3% and public order like guns and DUIs recidivate at 73.6%) reinforcing this idea that criminality arises from lack of opportunity more often than not ( U.S. Bureau of Justice Statistics 2014, 8). It seems as if there is a definite correlation between criminal conviction and being caught doing criminal activities again ; however, property and drug offenders commit crimes at a higher rate likely because they are crimes committed to make an income. Fur th er, as many studies have shown, f inding steady, quality employment is one of the strongest predictors of desistence from crime, and yet incarceration itself reduces opportunities for ex offenders to

PAGE 78

70 find work. This vicious cycle suggests that current "crime control" policies may in fact exacerb ate the very conditions that lead to crime in the first place. (Pager 2007, 160 ) This reminds one to look at the context: criminal activity does not happen within a vacuum but within a larger system. Geiger writes, if we throw out the two extreme determ inist positions that criminals are incorrigibly evil on one end and are totally determined by their surroundings on the other we are left with the reasonable scenario of a group of people more and less culpable, more and less able to return to productive s ocial roles, and mor e and less likely to recidivate ( 2006 1222) In other words, Geiger recommends that if one were to consider that like almost all bin ary options, most people lie in the middle of this belief spectrum rather than on the fringes one would have a better understanding of the realities of criminal justice However, there is another issue for this case: the relevance to individual respo nsibility strand of immutability: are felons responsible for civil disabilities? The Relevance to Indivi dual Responsibility Strand of Immutability While a felon is a felon for breaking the law, their responsibility is variable depending on the crime, intentions, effects, etc. But the moral blameworthiness seemingly linked to a felon is the problem: "The relevance to individual responsibility strand of immutability creates a doctrinal proble m i t imports into the suspectness inquiry the case by case equal protection inquiry itself, collapsing what should be a two stage review" ( Geiger 2006 1222). Meaning that what should just be a two step review for suspect status becomes a more convoluted problem. There are two reasons for this. First, heightened scrutiny is the only way in which a judicial review could find social or economic discrimination. Until a gro up is seen as worthy of heightened scrutiny, they cannot be considered a suspect class. Second, the relevance to individual responsibility strand of immutability declares that

PAGE 79

71 judges must find ex ante that members of a certain group or class deserve to be singled out for their affiliation with this class or group before heightened scrutiny can come into effect. The latter is troublesome because, as with felons, if a group is deemed dangerous in our society, it is not a far stretch for the courts to easily d etermine that entire group to be dangerous. For instance, in Korematsu v. The United States (1944) the court found little problem with the Japanese (even American citizens) internment camps in the U.S. in the 20 th century even though the Bill of Attainder clause prevents retribution against a whole class of people ( Geiger 2006 1223 4). Th ough there is still hope in this section through group b urden relevance because if a group faces an unfair burden of social and economic discrimination just for being part of a group, then heightened scrutiny can be applied to them ( Geiger 2006 1223) Many of the social and economic discriminations facing people with criminal records are easily arguable as invidious discrimination ; theref ore those with records should be afforded heightened scrutiny. But, as Geiger notes, until the Court "analyzes group burden relevance with an eye for social and economic discrimination, the judiciary will be blind to the pervasive discrimination against e x offenders and never turn on the heightened scrutiny necessary to detect it in individual cases" ( 2006 1223). However, this creates a catch 22 because the C ourt has to decide that the laws that discriminate against those with records have no relevance to status of ex offenders. Therefore, if the Court never makes a stand, it is almost the same as saying that felon discrimination is okay because it creates the same result: a continuation of the wrongful discrimination facing felons But there are two answers to this. First, is to offer individual sentences of civil dis abilities This is sometimes deemed cost prohibitive, but since a judge sentences

PAGE 80

72 everyone with a criminal record anyway, w hy not decide each set of disabilities or protect ions? The second answer is to give the whole class of felons, with certain exceptions, suspect status. With just one law, this might happen with a little effort; however, to get the entire case for suspect status heard relies on the current public belief a bout the criminal, which is inherently negative, to change. This will be an uphill battle because "In the public eye, the generic criminal is likely to be the worst kind, and deserving legislative sanction" ( Geiger 2006 1223). Given this understanding of the criminal in the public eye, there is a rather c lear connection for most people unconsciously between someone's criminal history, their culpability, and their legal burdens as previously argued. This belief is also seen in the Supreme Court because as Geiger writes, t he current suspectness inquiry holds that criminal histories create a nearly automatic correspondence between ex offenders responsibility and legal burdens necessarily rests on this faulty generic view. The relevance to individual respons ibility strand of immutability glosses over the question at the heart of equal protection analysis and turns a valuable protection of individual ri ghts into an echo of stereotype ( 2006 1223) To sum up this section on individual responsibility, Geiger writes, "The retributive justification for ex offenders' residual responsibility cannot justify application of collateral consequences to all ex offenders any more than retribution justifies application of a single sentence against all convicted criminals" ( 2006 1224). And that is exactly the point: blanket discrimination aga inst felons is extremely unfair because it assumes equivalent harm and culpability in every case, which is an unrealistic view. Irrelevance to Individual Ability, Impermeability & Immu tability T he t hird way to determine immutability is that immutable traits often have no direct correlation to ability to help society, to work, or to be in control of their own lives. Frontiero v.

PAGE 81

73 Richardson (1973 ) established that sex has no relation to ability to perform or contribute to society ; therefore, to consider all women legally inferior is invidious discrimination ( Geiger 2006 1210). People with criminal records have no significant barrier other than law and societal bias to living and adding value to a community. Like everyone else, they have many skills and some short comings ; however, this does not stop them from working, having relationships, doing volunteer work, starting businesses, raising children, etc ., being part of the community at large. To sum up this section on immutability, it should be noted that Frontiero (1973) suggests immutability plus an additional objection. It may be best to think of this as immutability plus a "so what?" Why should someone or the government care enough to make specific legislation or social change for this group? For instance, the Court argued in Massachusetts Board of Retirement v. Murgia (1976) that age is not a suspect class because age happen s to everyone In oth er words, age is a condition shared by all living things : if a person live s they will age ; therefore, the aged are not a special class worthy of suspect status ( Geiger 2006 1212). Another approach to this argument is that the elderly are also a secondary protected class due to federal statutes about age based discrimination This is to say that because we all age, age is not a suspect class, but we still cannot be discriminated against for it because that too is wrong just this wrongness is based on somet hing other than suspect status However, because only some of the population will be felon s the designation is for life and there are laws specifically discriminating against felons I can ask the question, is having a felony immutable? Yes, because wh ile one is not born a felon, given current American jurisprudence, c riminal records are immutable because c riminal records last for life, are easily

PAGE 82

74 accessible, and running background checks is increasingly common and easy As Geiger points out, the ex offend er class is legally structured and s ince the ex offender class depends on government action for its creation and existence, government policy determines the class's immutability. Thirty two states currently allow ex offenders no opportunity to clean up their criminal convictions. In the eighteen that allow some opportunity, convictions can be altered, ameliorated, and in rare instances erased altogether ( 2006 1218) In other words, the amount of wrongful discrimination that happens to felons and the limited ability to escape it is government c onstituted and controlled. This is a government issue. Also something Geiger does not mention directly, but points at is that time itself is an immutable trait because no one can change the past: it is there to stay. And being as state and federal governm ents maintain massive databases of the past of certain people's behavior (for example, criminal records), the past is literally inescapable for a felon because it is the permanent record of one's "character Whereas everyone else is given the opportunity to make mistakes, learn, and grow, the past really can (and often does) catch up to a felon and drastically limits their possibilities regardless of whether or not the charge (from anywhere in their life) says anything about the person that they are today and how good of an employee, gun owner, lessee, licensee, tenant, or any number of other things for which someone's "character" comes into question they are. It is intriguing to think about the impact of holding a mistake over someone's head for life. What if everyone's mistakes were often used as excuses not to allow them to do things? What if all people were constantly limited by their mistakes instead of being allowed opportunity for growth? Finally, it is sometimes thought that a record can eventually b e sealed or expunged, but it is rarely so simple. While some states allow people with criminal records to "alter, ameliorate, or erase" them, this does not mean that the class of

PAGE 83

75 offenders is easily changeable in fact, this points out how hard it is to get out of this class. Or as Geiger writes about California, a state offering some alterations of criminal records, "Most alterations of criminal records in California, including even the gubernatorial pardon, do not erase a criminal record altogether and the refore allow an investigating party to view the underlying conviction" ( 2006 1218). Currently, few states allow cleaning up these records completely and the few that do usually make it a large hurdle of time, effort, and money, as a lawyer, paperwork, and a trial are often required. Meaning that further, it is a speculative enterprise and no one is guaranteed relief from their disabilities. Therefore, the class of ex offender is incredibly difficult for most felons to leave qualifying felons for immutabili ty ( Geiger 2006 1219). Geiger sums up the case for immutability succinctly: S ubstantial barriers to exit from the class of ex offenders, the lack of significant relevance between ex offenders' criminal histories and their individual responsibility, and the impermeability of the class all support the conclusion that ex o ffenders are an immutable class ( 2006, 1224 5) Do Felons Have a History of Class Based Discrimination ? The next trait that the Supreme Court looks at in order to determine suspect status is a history of class based discrimination. This criterion is rather straightforward: can a rational case be made that there is a history of class based discrimination against a specific class ? Frontiero v. Richardson (1973) also establishes t he indicia of a history of class based d iscrimination The Court decided that U.S. Military benefits cannot be doled out different ia lly to men and women, citing that women have a history of gender discrimination "which, in practical effect, put women, not on a pedest al, but in a cage" and is similar enough to the discriminations facing black slaves before the Civil War (such as being unable to bring suits in their names, hold office, sit on a jury, own

PAGE 84

76 property, vote, etc.) to be seen as prejudicial ( Geiger 2006 1210 ). However, the Supreme Court does sometimes decide that groups are not protected classes, citing that there is not a history of class based discrimination (among other reasons). For instance, in the "Great horrible case" San Antonio v. Rodriguez (1973) t he court argued that distributing school funding differentially to rich and poor schools is legally valid because social class (i.e. poverty) is not a protected class ( Geiger 2006 1212). In other words, being poor is not a suspect class. They argue that social mobility is possible; therefore, poverty is not immutable because it can be changed (presumably with hard work, education, and a bit of luck) ( Geiger 2006 1212). The case is a bit different for felons : there is a clear history of class based discrimination which most people think or thought was good As will be discussed in more detail in C hapter F ive civil disabilities are a variant of civil death, a tradition that has existed since sacer homo in Ancient Rome This death is variable dependin g on the other circumstances of the felon's life ; however, t here are still a vast amount of restrictions for even those felons lucky enough to become highly successful to contend with T his discri mination is implicit in U.S. law and carried ov er from British Common Law. Ironically, U.S. law currently is far more stringent than the U K which got rid of the label of felon in the 1960s Meaning that felons have a history of class based discrimination going all the way back to the Middle Ages and maybe even R ome! A s Geiger points out in a quote from Frontiero (1973) Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal gu ardians of their own children." Each of these restrictions on legal status has also been or continues to be imposed upon ex offenders ( 2006 1225)

PAGE 85

77 And what is interesting is that while few people today would hold the posit ion that blacks or women should be denied these rights, many people are fine with felons being denied these rights as part of a perpetual punishment for crimes they have committed. Are Felons Political ly Powerless ? The next question the Supreme Court asks in relation to suspect status is, "Is the group in question politically powerless?" However, as with the other criteria, political powerlessness is a gradient and not a clear cut yes or no. It can only be decided under strict scrutiny. This notion of polit ical powerlessness comes from paragraph three of footnote four in United States v. Carolene Products (1938) which suggests that "government prejudice against discrete and insular minorities tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities'" ( Geiger 2006 1213). However, t he Court can deny groups suspect status for t his exact reason. It denied suspect status to conscient ious objectors because they had been given a break by being allowed not to serve in combat [ f or instance, in Johnson v. Robison (197 4 ) ] and thus are not a politically powerless discrete, insular minority nor have they experienced discrimination rather, t hey have been given special privilege already ( Geiger 2006 1213 ). B eing mentally handicapped is not a suspect class because lawmakers already make a djustments for the handicapped [ for example, City of Cleburne v. Cleburne Living Center (1985 ) ] ( Geiger 2006 1213). B ecause of this, there are some quasi suspect classes, for instance women. Women are half of the population and not out of the thoughts of the legislature in the ways that a minority group like the Amish would be; however, Frontiero argues tha t women count as politically powerless becau se there are few women in many "decision making councils and thus, their political will is often

PAGE 86

78 filtered through men wh o may or may not act in the ways that a woman would or in a way that is fair to the wants and needs of the women in our society ( Geiger 2006 1214; Frontiero ). T his leads one to something interesting and something in line with Ely (see the next chapter on discrimination): the real issue with political powerlessness is the extent to which the cl ass is unable to permeate the governmental structures either by becoming an official or affecting policy by having their voice and positions thoughtfully considered. And if a group's positions are not considered, they may experience undue discriminations o ut of the ignorance or malice of those in power. Impermeability Impermeability is the idea that the suspect class in question is at a remove from the main legislative body and thus, the laws of the society are made without taking their position into question. Legal scholar John Hart Ely calls this the w e they divide As will be discussed in C hapter F our the heart of Ely's argument about discrimination is that discrimination happens when the laws are disproportionately unfair to an entire class of p eople. Members of the government are rarely from marginalized classes meaning that the government can be hostile or unaware of the probl ems faced by any minority group. This is problematic because as Geiger writes, societal distance "increases the likelihood that legislators will act prejudicially against these groups out of hostility or undervaluation of harm suffered by these groups for the simple reason that self serving and other harming legislation will never hurt the legislator s" ( 2006 1211 12). This applies to ex offenders as well as a class; however, with felons, this problem is often multiplied because a disproportionately high number of people with records also belong to many other marginalized groups such as the poor; blac ks ; Mexicans; natives; and people with mental health issues or drug addictions. For instance, a 2013 study shows

PAGE 87

79 that On December 31, 2013, about 37% of imprisoned males were black, 32% were white, and 22% were Hispanic. Among females in state or federal prison at year end 2013, 49% were white, compared to 22% who were black and 17% who were Hispanic" ( U.S. Bureau of Justice Statistics 2014, 8 ) T he 2010 Census data shows similar numbers, 39% white, 19% Hispanic, and 40% black. At first, this does not seem like a big issue until you take into account that whites are 64% of the population where as Hispanics are 16% and blacks are 13%. This means that that about .04% of whites are currently imprisoned compared to .08% of Hispanics and 2% of blacks (Sakala 2014 ). In other words, Hispanics are twice as likely as whites to go to prison and blacks are five times as likely. And when one figures in the amount of time that mass incarceration for drugs has been in effect almost fifty years (since 1971) this just reifies what so many already know: black people are highly likely to have a criminal record, especially black men. But what are the real statistics? Pager writes, African Americans compris (e) more than 40 percent of the current prison population whi le making up just 12 percent of the U.S. population. At any given time, roughly 12 percent of all young black men between the ages of twenty five and twenty nine are behind bars, compared to less than 2 percent of white men in the same age group; roughly a third are under criminal justice supervision (2007, 3) This means that while there is a large population of people who are at one+ remove (one + step away) from the governing body because of a felony many of those felons are at two+ removes away from g overnment officials consideri ng the overwhelmingly racial face of people with criminal records. This means that a vast gulf exists between most lawmakers and people with criminal records. Summing this up succinctly Geiger writes, w here such a gulf exists, legislators are less likely to consider that legislation creating a we they divide would ever apply to themselves or their loved ones or that the impact of collateral consequences on the ability of ex offenders to

PAGE 88

80 reintegrate into so ciety could be devastating. The class of ex offenders is functionall y, if not actually, impermeable ( 2006 1224) As long as that is the case, felons will find it difficult to reenter society, which likely has much to do with why the U.S. is currently fa cing a recidivism rate over 70%. Discrete and Insular Minority As Geiger points out, "The normal inquiry into a group's political powerlessness turns on whether that group is a discrete and insular minority ( 2006 1225). To explain this, I must break down what is discrete and what is insular in order to argue w hether or not felons are both or either. Discrete Geiger offers two criteria for determining if a minority is a discrete minority. First, discrete minorities are easy to target/identify which makes them an easy target for discrimination. S econd, discrete minorities are easy to avoid getting to know thus reinforcing the effects of im permeability of a suspect class ( 2006 1226). There are three ways in which discreteness can be shown: first is documentation and legitimacy. While a felon may not have any immediate characteristics that identify them as a discrete minority, documentation can easily and quickly betray this information. This is similar to non citizens and legit imacy claims. Or as Geiger writes w hile aliens and children of non married parents may be physically indistinguishable from the rest of society in daily life, in moments where documentation of citizenship (as in voting) or legitimacy (as in probate cases ) is necessary, these groups are readily identifiable ( 2006 1226) And this exact issue is a major facet of the case for felons as a suspect status because civil disability is in many ways in the documentation. Because of the advances in information sharing technology, felons are more readily and quickly identifiable by what Geiger calls their "digital scarlet letter Through simple, cheap background checks, almost anyone can find out who has a criminal record and for what allowing discri mination to happen

PAGE 89

81 nearly effortlessly ( Geiger 2006 1226). Second, because felon is a category constituted through law, ex offenders are facially indistinguishable. Meaning that anyone can be a felon in the same way that a fully naturalized alien can seem like an American born citizen. This is good because it can allow a felon to pass as a non felon easily; however, given the simplicity and ubiquity of running a background check, it is often a short lived passing. B ecause the m edia, politicians, and cultur e demonize the identity of "criminals one cannot tell stereotype from reality, which creates a situation in which the identity of the criminal is mostly in one's own mind and not in the concrete situation of any one given criminal Geiger writes, "Physical indistinguishability of feared minorities, in other words, can serve a similar alienating function as segregation of racial or ethnic minorities" ( 2006 1227). Further, because of the legality in the documentation, "ex offenders, aliens and illeg itimates are ultimately distinguishable during key moments of opportunity for prejudicial action, the mechanism for discrimination is fully available" ( Geiger 2006 1227). The third way in which discrete minority status can show is being facially discrete. Facially discrete minorities cannot hide or pass because anyone can see their minority by looking at them (for instance, gender or race). The benefit is that facially disc rete minorities cannot help but be seen and thus often have an easier time gaining space in the political and cultural sphere b ecause they must be dealt with as they cannot pass and have no choice but to express and explore their political identities ; howe ver, as the last decade of I slamo phobia has shown, the downsides of being facially discrete is that a person in this kind of minority is an easy target for discrimination because of exactly this same reason: passing is nearly im possible. The confusion and mystery

PAGE 90

82 surrounding these cultures often also means that it is also easy to have cultural identity subverted and misused in a way similar to a facially indistinguishable minority ( Geiger 2006 1227). And while felons are not gen erally facially discrete (unless they have prison tattoos or something like that ), they are easily distinguishable for discriminatory purposes based off of background checks and thus, are a discrete minority. This is shown in the media portrayal of dangero us felons particularly the discourse against drug dealers as merchants of death when they account for a far smaller portion of the U.S. deaths and disease than tobacco, prescription drugs, or car crashes individually. For instance, Geiger writes that t he media's coverage of crime leads to disproportionate fear of crime and criminals, and, by association, ex offenders. Reports on crime make up one third of late night news programs, in part because these stories are cheap, simple to film and easy to produce. Similarly, 4% of mortality related news was devoted to tobacco in 1990 while 19% of deaths that year were actually attributed to tobacco; in contrast 16% of mortality related news was devoted to drugs and only 1% of the deaths were actually attr ibuted to illicit drugs ( 2006, 1198) While it may seem that things have changed since the 1990s or that this information is old, something to keep in mind is that many of the policies discussed in this thesis are from the 1990s and exactly the ideological climate that Geiger is talking about So, while things may be a bit different now, the U.S. is still reeling from the laws passed in this rather recent time period Likewise, in 2014, there were over 47,000 deaths from drug overdoses, an increase from the previou s years because of a doubling in the amount of prescription opiate deaths (from around 3,000 to 5,500) and a twenty six percent increase in heroin related deaths raising the figure for heroin to 10,574 ( Centers for Disease Control and Prevention 2015). W h ile this is a high number of preventable deaths, alcohol alone is responsible for 88,000 deaths from 2006 2010 (around 22,000 a year) ( Centers

PAGE 91

83 for Disease Control and Prevention 2014). And of course, cigarettes cause around 480,000 deaths a year, including around 41,000 deaths from second hand smoke due to lung cancer or heart disease ( Centers for Disease Control and Prevention 2016). Yet, neither receive anywhere near the negative assessments as or criminality of being a "merchant of death" th at those invol ved with illegal drugs do Insular Insular groups often interact together, for instance, a close knit minority religious or ethnic community; therefore, t hey are also more likely to or much easier to organize into a political lobby than diffuse groups. However, insularity is not necessary for suspect status as other suspect classes lack insular ity. For instance, illegitimate children (illegitimates) are not insula r, but are still a quasi suspect class ( Geiger 2006 1228). What is interesting about felons is that in some ways they can be considered insular, but in others they would not be considered insular. First, prisoners are not insular in the classic way : in pr ison, prisoners are an insular minority; however, this is in many ways because of incarceration itself and not because of an inherent insularity in prison populations. They are forced to be insular. It is true, often prisoners are parts of specific minorit y communities; however, this insularity is before, beyond, and mostly unrelated to a prison based insularity. Further, as people exit prison, they do what they can to re turn to their previous roles as members of various racial, ethnic, religious, local, r egional, political, and familial communities. Rather than find community in their identity as ex felons or misdemeanants, ex offenders try as quickly as possible to shed this identity and reestablish former ident ities or move ahead to new ones ( Geiger 2006 1228) This is to say that few people embrace the i dentity of a life long criminal; rather they embrace being a parent, a religious member, a worker or something about life on the outside However, being a felon is a type of insularity if also con sider ing how many

PAGE 92

84 people think of prisoners and criminals as a large network of bad people. In other words, being a felon is a type of insularity in many peoples' minds because of media portrayals and misunderstandings of criminals and criminality. For ins tance, all the fears of the insularity of criminals learning more criminal activities, scheming, creating criminal networks, meeting other criminals, etc. are actually more likely in a prison environment because of the clustering of the prisoners together ( Geiger 2006 1228). But this too in many ways is a myth as ( 1) many people just want to get through prison and try to move on with their lives and ( 2) it is not as if there is a real criminal underground that is fully interconnecting all criminals : crimin ality is its own insularity within which there are many other pockets of insularity (even in mafia media fantasies the mafias exist in families ) constituting the whole of criminality. The insularity of criminality is like the insularity of any other enterp rise: the people who know about it know it and they hear about it how they hear about it. Involvement is purposely kept small to avoid detection and mistakes but spread far enough to anticipate success. There is no great god, teacher, or prophet of crimin ality. Nor is there a race, ethnicity, spirituality, region, political party, etc. dedicated to criminality (with rare, obscure exceptions). Those that recidivate do so mostly as a response to existential or sociological conditions that are a product of th e environments they are in and the con ditions of being a felon. O f course, "active criminal" should not be a suspect status under equal protection as there is a reason for the "suspect status" of active criminals to be treated with heightened scrutiny by t he police as long as our c urrent judicial system exists It is proper for police to seek out active criminals. But felons ex convicts, as a group should not be punished for their deeds forever : once their sentence is completed, they should be considered a full citizen again B ecause of the

PAGE 93

85 decline of the rehabilitation model the strength of the model that prisoners cannot be saved, and the diffuseness of the population of felons who are able to "pass felons are a greater object of fear because many peop le do not know (or do not know that they know) any felons other than through media portrayals and the fear of cri minals in our cultural imagination Geiger writes that, a group that is widely distributed throughout society rather than concentrated in one enclave can be more threatening. While incarceration by design protects society by isolating and removing dangerous people from society, once ex offenders are released, they re enter society ( 2006, 1228) S adly, because the U.S. has given up rehabilitation as a penological goal, this seems to be the best conclusion: "Since on the one hand we cannot justify permanent incarceration and on the other we no longer believe criminals who serve their time are rehabilitated, we logically beli eve that by freeing the incarcerated we are releasing criminality in our midst" ( Geiger 2006 1228). This is often enflamed by the media. T he fear around sex offenders in general is a perfect example of this. For the most part, our society sees sex offende rs as people who are permanently unsafe and irredeemable. Yet, this could not be further from the truth: 19/20 sex offenders do not reoffend within three year s of arrest (Geiger 2006 1229). This is far and away the lowest rate of recidivism among any type of offender: two thirds lower than the all crimes average of 76.6% ( U.S. Bureau of Justice Statistics 2014, 8) And as Geiger quotes from a U.S. DOJ report, re arrest rates of child molesters are even lower than those of other sex offenders" ( U.S. Bureau of Justice Statistics 2003 ; 2006 1229). Something one would never learn from media reports T his attack on sex offenders for life is a part of a segregationist instinct toward anyone with "criminal thinking" : The demand for publicly available sex offend er registries reflects the public's

PAGE 94

86 desire to unmask the anonymous, to locate exactly where, in their midst, hidden threats reside and then socially isolate them within communities. Diffuseness and insularity of highly stigmatized groups are two sides of t he same segregationist instinct ( Geiger 2006 1229) It is interesting how the statistics compare to the media and common portrayals of criminality which then reify their positions even if it can be easily argued that these portrayals and their ramifications (e.g. civil disability) are the reason for such high recidivism. T o sum up this section on political powerlessness, I can say that felons deserve heightened scrutiny because their criminal records create a situation in which they have a hard er time achieving political power or adequate representation. And that their diffuseness makes it not only harder for them to achieve equality, but makes them easier targets for discr imination because there is no felon party or pro felon politicians and ju st a few lobbying organizations actively fighting laws on behalf of felons. A t the moment, the situation is such that the political majority can easily ignore the rights and concerns of felons while easily justify ing the current and further discrimination with a nod toward the safety of th e other constituents. Due to all of this discrimination, it is difficult for felons to reach any kind of serious power under our current system, as any push by felons would very like ly be received with ridicule fear, and hostility Inherent Suspicion of the Classification The final area of strict scrutiny, inherent su spicion, is somewhat nebulous. It is as simple and as complicated as it seems: it is the rule that some classification s are inherently suspicious. The paradigmatic case of inherent suspicion is r ace because there are so few legitimate governmental purposes to base a law on race that any laws based on race automatically warrant heightened scrutiny. But how does this relate to felons?

PAGE 95

87 Obviously, people currently committing crimes, incarcerated, or on probation or parole should be regulated in order to make sure that all the governmental interests are addressed. Geiger writes, "With so many important government interests at stake, legislation targeting criminals is in a sense inherently unsuspicious" ( 2006 1229). However, regulatin g felons is not the same thing because to regulate ex offenders in the same way is to argue that people should be punished forever. The idea only makes sense under the penological model that says that felons can never be reformed and thus are always criminals. But this is neither verifiable fact, nor a good argument. As argued earlier one can rather easily say that civil disabilities grossly add to the problem of recidivism. And if treating felons this way is actually relevant to penological goals, then, at least, as Geiger says, the government should be forced to closely tailor its efforts to concrete, verifiable goals" ( 2006 1230). Felons Are a Suspect Class Above, I wrote about the indicia of s uspectness and argued that felons have all of the indicia: being a felon is immutable, felons have a long history of class based discrimination, felons are politically powerless, and overall, there is an inherent suspicion to laws blanket disc riminating against felons ( they could even easily be argued to be bills of attainder). T his being said, it is rather clear that felons deserve at least strict scrutiny to determine whether they should be afforded qua si or full suspect status. Whether the Supreme Court ever offers felons that oppo rtunity however, will be left up to time to tell. The Other Option: A Call for S olidarity In this section, I discuss what is commonly known as identity politics to see if and how it could help felons. In other words, would it help felons to own the label

PAGE 96

88 (create/reclaim the identity of felon) and collaborate to work on increasing personal freedoms as a movement or are felons better off alone (trying to pass, hoping for the best, working/living in areas/sectors that are more open to felons) given the above options ? The Politics of Passing Identity politics is an approach to thinking about political arg uments in relation to identity. Specifically, it is the idea that felons could rally around the identity of felon and use that rallying to spur political changes via work on laws and consciousness raising. This is important for felons because unlike many other discrete and insular minorities who are insta ntly recognizable by their outward appearance it is much easier for felons to disperse and hide their identity. Due to this, there are incentive s to "passing" for a felon ( acting as if they do not have a criminal record ) However, passing is a game theory level paradox: passing allows one person to maybe squeak through into good jobs and hous i ng that do not do extensive background checks or do small background checks but passing does not do anything to alter the situation f or felons as a whole class of people. And this is part of the issue: felons are a class of people created solely via legal definition. Without the definition of felon being such that felons are able to occupy a legal class that has limited enough rights to constitute being discriminate d against felons would not be fe lons in a way that would be meaningful In fact, the UK did away with felonies in the late 60s and thus, they no longer have felon s even though they still have courts, criminal charges, and sentences And while it bothers s ome American organizations focused on child abuse like the NSPCC, the European Union do es not share c riminal records with the public because the EU Data Protection Act bans them as a breach of personal privacy ; therefore, the EU does not have sex offender registries or

PAGE 97

89 databases of criminal records open to the public In fact, the data from the European Criminal Rec ords Information System (ECRIS) is only available to prosecutors and judges in order to have "comprehensive information on the crim inal history of persons concerned" and with the hope that they can prevent crime in general and stop repeat criminals from escaping their records and thus, not being fairly punished for multiple crimes ( European Commission 2016). Identity Politics and Felo ns H ow exactly would identity politics help the situation of felons? Well, as discussed previously, felons have little political power as a group and depending on their state of conviction, may have n o individual political power in that state at all. An organized group of felons can work actively for felon rights by working to get legislation passed or changed and to raise consciousness about the real variance in felons and the difference between ex offenders and people who are currently committing crimin al activity. While there are a few groups, mostly non felons, who do work of this nature, it is not the same as having a large, nationwide group of felons actively working for their own civil rights. A group of felons working for their own rights would not only open more space for felon rights, but would also put everyday people with felonies in the spotlight so the populace at large could realize that felons are often not scary or inherently criminal, but rather that they probabl y even know and like a felo n or two. In other words, like many other civil rights movements, felons need to actively promote their cause to politicians and other people. Without getting other people on board, nothing will change; however, if felons were to amass some political power captivate the minds of people in general, and gain some backing in state or federal government, then

PAGE 98

90 many things could change. For instance, a nationwide group could begin pushing different states to have easier ex pungement and sealing processes, make private discriminatio n illegal, and even to gain federal suspect status for discrimination. However, none of this will happen as long as individual felons opt to pass as non felons and there is no real push for solidarity or a large scale political moveme nt (While there may already b e some groups they are likely small: thus far, I have been unable to locate a felon identity movement run by felons.) While lacking the space, an interested party could take this further and ask how could this solidarity be encouraged and facilitated? Conclusion In this chapter, I discussed the different ways in which felons could overcome or remove their civil disabilities. While currently, there are few ways to do this and none of them are simple quick, or inexpensive this does not preclude the future from finding ways of alleviating the discrimination that felons face particularly with texts like this one showing the blatant and vast levels of discrimination felons experience and the difficulty of removing them It i s with this hope that I bring this section to an end. Now that I have described what felons and civil disabilities are and how difficult it is to remove them, I have enough information to ask two important questions: ( 1) are civil disabilities wrongful discrimination? and ( 2) are civil disabilities equivalent to civil death? These two questions will be the topic of the next two chapters respectively

PAGE 99

91 CHAPTER IV ARE CIVIL DISABILITIES WRONGFUL DISCRIMINATION? This chapter argue s that as a whole collateral consequences/civil disabilities (all the disabilities focused on individuals) are a form of invidious discrimination because they are demeaning to felons. In this chapter, I discuss civil disability and offer a n argument for why civil disabilities are wrongful discrimination Discrimination: I s it Really Wrong to Discriminate? D iscrimination is not always wrongful. People have to discriminate to live. The question of discrimination is not whether or not a distinc tion is drawn between people, but whether or not that discrimination is wrongful: does the discrimination create a blatantly unfair situation in which someone is looked upon as having a lesser humanity? Does the discrimination demean them and make their li fe unnecessarily difficult? And the most important question in this case is is it always wrong to discriminate against a felon? Overall, the answer is no. For instance, even though they have a very low recidivism rate, if someone is convicted of pedophili a, then it is probably a good idea to prevent them from any situation where they are in positions of authority over or oft en around children. Intuitively, many people feel the same with someone who has committed treason to be the president or someone who c ommitted bank fraud to be a bank manager. But this points out something larger: human beings often discriminate; however, in the interest of fairness, we must have reasonable ways to make sure that we are only discriminating in ways that are just For this reason, one would probably not want to say that it is 100% unjust to discriminate against any individual person. R ather, as people concerned with

PAGE 100

92 equality, it is important to make sure that the criteria b e ing used are fair and honest. There is still a des ire for a good, trustworthy employee, boss, friend, neighbor, romantic or se xual partner, tenant, etc., but instead of thinking about qualities like race or gender, we want to focus on a person's value within the situation we are assessing them for. But th en, the question becomes, when is it okay to discriminate against people? Is it fair to blanket discriminate against large gro ups of people like felons? R ather than fixate on these specif ic, anecdotal cases in which it woul d make simple sense to discrimina te against felons, we should ask the question, "Is it wrong to blanket discriminate against all people with felonies?" This is similar to other civil rights movements: some people in all demographics are problematic (and generally, the belief that many peo ple in any gr oup are bad is more ideological or anecdotal than factual), but that does not mean that all of them are; therefore, to judge all based on the actions of some (or pure ideology) is unjust. With that in mind, in this section, I will discuss if discrimination is always wrong and then tackle if/when discrimination is okay against felons. Wrongful Discrimination: Is Discrimination Always Wrong? Though I mentioned this above, it is worth reiterating: discrimination in itself is amoral. We discrimina te all the time and could not live without discrimination When discrimination is wrongful, then, it is proble matic to society at large. Meaning the real question here is what is wrongful discrimination? Fiss, Ely and Hellman There are two famous ans wers to these questions within American legal theory from Owen Fiss (1976) and John Hart Ely (1980) Both argue that the ideal of equality forbids discrimination that creates an unfair playing field for individuals of certain communities, but they differ o n how they understand equal

PAGE 101

93 protection within legal theory Fiss takes the position that the history of class based discrimination is the key. Discrimination in a certain sense happens to the group through the individual: only the group can be discriminat ed against because to wrongfully discriminate against people is to treat them in ways that reinforce caste systems like those that were based on race or gender in the past risks undermining our current levels of freedom. In other words, to wrongfully discr iminate is to treat someone as if they are part of a previously existing caste system, which fosters a degradation of our current freedoms backward into previous situations of oppression we have worked through (Fiss 1976) Ely, on the other hand, argues that because discrimination is impossible to avoid, we have to strive to create selection criteria that do not consistently wrongfully discriminate against groups of people (usually minorities) by either not allowing them to be represented or by ignoring t heir interests. Wrongful discrimination is problematic because if certain groups do not have their interests heard in our society, then we cannot be certain that all groups will have their interests taken into account, which undermines our freedom. There w ill of course always be losers and winners in any policy particularly in a pluralistic system like the U.S. and we have to accept that sometimes policies will help some and harm others; however, we have to make sure that we are not creating unfair situ ations in which "discrete and insular minorities" are unable to prevent repeatedly being losers or to minimize creating these situations as much as possible (Ely 1980) In other words, for Ely, the answer is to be more proactive: create situations in which vulnerable minorities have their voices heard and concerns addressed in legislation so that legislation does not unfairly advantage or disadvantage any groups across the board. Specific legislation will necessarily favor some; however, we need to make sur e

PAGE 102

94 this is not a totalizing effect, but rather something that all groups experience (Hellman 2008, 14 15; 22 23). In other words, for Fiss or Ely, the problem is that discrimination reifies previous limiting categories of people (castes) which hinder the f orward progression of our society by threatening to return us to a less egalitarian time. However, some commentators for instance Hellman, have mentioned that because the focus is on anti discrimination against castes, neither of these arguments seem relevant to or able to explain the discrimination felt by individuals Critiquing both of them, Hellman (2008) argues that there is something unsatisfactory to th e se arguments because in each of them wrongful discrimination is derived from preexisting cas tes and laws (history) and not from the wrong done to the individual itself. First, Fiss's anti caste theory does not do enough to explain the wrong done to an individual who experiences wrongful discrimination. Hellman argues "Though the status of the gr oup may be relevantit ought to be relevant in a way that allows us to maintain that a wrong is done to the individual and not just to the group" (2008, 23). Ely's positi on also has a similar flaw: "It is the fact that the wrongfulness of any individual po licy depends on prior polices that is problematic" ( Hellman 2008 24). In other words, in order for something to be wrongful discrimination it has to have a history or cumulative effect against a group. Also, to enact Ely's ideas, we would have to look at the effect(s) of specific legislation within the matrix of laws already existing to see how it benefitted or disadvantaged any group ( s ) of people. Ely's ideas negate the wrong done to the individual agent when wrongfully discriminated agai nst : focusing instead on the wrong done to the group through the individual agent Hellman points out the example of a privileged white woman who has not experienced much wrongful

PAGE 103

95 discrimination in her life, but who experienc es job discrimination one time: One might say that here she is entitled not to be disadvantaged on the basis of her sex but only because in general the interests of women are not adequately considered in the drawing of distinctions in most policies and laws. If so, the sex discriminatio n that affects her is wrong only derivati vely. Something is thereby lost ( 2008 24) In other words to say that her discrimination is wrong because women are often discriminated against and not because she was discriminated against seems hollow. Similarl y, w ha t about equality itself? O ne could ask equality according to what standards? What criteria? Equality how? One answer to this problem argues that this would end up in a discussion about the merit of differing criteria without ever getting to equality itself. Other questions would necessarily arise : Are the criteria under discussion the right criteria to apply? What makes them valid or invalid in this situation? And to answer these concerns in a meaningful way, we would never arrive at a discussion of e quality, but rather a discussion of how one or more criteria are irrelevant to making a choice and therefore discriminatory. For instance, in the case of race discrimination, the criteria of race is irrelevant and a bad criteria, therefore, one can jettis on it as unfair or silly without ever getting to the equality of choices or the concept of positive human rights ( Hellman 2008 32 33). Whether or not one argues that this position is ultimately tenable, it is worth taking into account nonetheless because it questions the intuition of human rights: do we all have equality or is there something else informing this equality? What does it mean to be equal to another person? But then what is the alternative? To look at wrongful discrimination as something that demeans another person. Hellman writes, t o demean is to treat another as less worthy. In this sense, demeaning is an inherently comparative concept. What will be demeaning will surely vary from

PAGE 104

96 context to context and from culture to culture, and thus it i s unlikely that a norm of non demeaning will require that people have access to some particular conception of r ights or minimum level of goods ( 2008 33) I f we treat someone as less worthy than anyone else, then we are guilty of wrongful discrimination. Wrongful discrimination of this sort will usually arise from deep seated and pre existing discriminatory classifications, but this also does not prevent new classifications from arising or from seeing wrongs in specific discrimination However, this theory does not seek to stop any disagreement about what is and is not demeaning. Hellman writes, p eople are likely to disagree about whether any actual practice demeans. No theory could, nor should, hope to eliminate such disagreement entirely. The theory I propose helps to channel that disagreement to the right question. Of course as a society we need mech anism for dealing with disagreement, whether disagreement about when discrimination is wrong or anything else. In our society, the methods include democrati c and judicial decision making ( 2008 85) T he question becomes is felon discrimination demeaning? Are civil disabilities wrongful discrimination? Are Civil Disabilities Wrongful Discrimination? Now that I have discussed Fiss, Ely, and Hellman on discrimination I will try to see if (an) argument ( s ) can be made under each position that felon discriminat ion is (at least often) wrongful. First, Fiss argues that every act of wrongful discrimination reifies an old caste system, which fosters a degradation of our current freedoms backward into previ ous situations of oppression. U nder this model, one could arg ue that civil disabilities are a form of a caste system because they create a large set of limitations on a felon's life that vastly limit s their ab ility to live equally to others. Further, this caste system has existed for hundreds of years (since the inception of "f elon" in British Common Law). Similarly civil disabilities are wrongful discrimination because they reify an outdated

PAGE 105

97 caste system and caste systems undermine our democracy because they create an unfair situation for some people who have to still compete with the extra disadvantages. Second, Ely argues that discrimination means that a group's interests are not taken into account, creating a situation wherein (a) group(s) of people is/are repeat losers in our political process. Under this m odel, one could argue that felons are repeat losers in U.S. politics: some felons are permanently disenfranchised, are discriminated against, chastised, for the most part do not advertise their felon status ( i.e. try to "pass"; covered earlier, in chapter three ), and all have a tremendous amount of disabilities; therefore, felons are underrepresented in government and this explains their status as repeat losers in the political process. Felons can also be argued to be a "discrete and insular minority": the y are a group of people interconnected through a specific trait (being a felon) that is now readily available to anyone who can afford to have a background check done. From this, it seems as if there are many ways in which Ely and Fiss's ideas can be appl ied to argue that felon discrimination is wrongful discrimination; h owever, as stated earlier, neither of these arguments is particularly relevant to explaining discrimination against individuals or for explaining the existential experience of being an individual experiencing discrimination. Now, I turn to Hellman and the argument that demeaning actions are discriminatory in order to show how her argume nt could be used to describe discrimination against felons. Hellman writes, d emeaning action requires (1) an expression of the unequal humanity of the other and (2) that the speaker occupy a position of status such that this expression is one that can put the other down. Whether or not any particular action expresses this deep disrespect depends crucially on context and convention. In this way, the unique history and traditions of a particu lar society play a central role ( 2008 38) As I discussed above, to wrongfully dis criminate is to demean someone by treat ing them

PAGE 106

98 as lesser than anyone else. And to make this relevant to our project: is it demeaning to discriminate against someone because they have a felony charge on their record? Obviously, a person hi ring others seeks the best candidate This decision maker is going to use some criteria to decide who is a good fit for the job and the culture of the organization. This is irrefutable. Again, the question is the criteria of value: does a being a felon mak e someone less qualified, trustworthy, valuable, or worthy of equal treatment? Is someone's criminal background a legitimate test of their character at this moment? Is someone permanently to be held responsible for things they have done wrong? Etc. The ans wer is clearly no but I can offer an answer to the larger question: is it always wrong to discriminate against felons? Is It Always Wrong To Discriminate Against Felons? I f we apply H ellman's criterion that wrongful discrimination is that which is demeaning then anyone with a clear conscience would have to say that sometimes it is demeaning to discriminate against felons and sometimes it is not. For instance, it is probably a good policy to ban pedophiles from being in positions a round children for extended periods of time; however, if it is demeaning to deny someone with say a felony assault, theft, or drug offense the right to work with children for life is still an open question. Similarly with guns: should people with non viole nt offenses never be allowed to own a gun? Or with occupational licenses: should someone be prevented from getting an occupational license because of previous charges? (Is it demeaning to deny someone the ability to better their situation permanently?) How ever, the next chapter looks at these questions with the specific idea of civil death in mind: are felons civilly dead? If the answer is yes, then, we are forced to agree that felons are part of a caste system (Fiss),

PAGE 107

99 repeat losers in our politics (Ely), a nd demeaned through differential treatment (Hellman); however, this will i nevitably raise the question "when is it civil death and wrongful discrimination and when is it actually a good policy?" From the exploration of discrimination above, I can rather ea sily argue that felon discrimination is demeaning when the status of "lesser than" is meritless to the person and situation in question. This argument is that it is okay to consider someone's criminal background if and only if it is relevant to the discuss ion at hand, for example, sexual crimes against children and teaching licenses. However, this also means that the burden of this argument is to show that with the sole exception of crimes relating to the item the f elon is under consideration for (1) being a felon is irrelevant to the value of someone's character in this moment while there may be some bad apples (as there are in any class of people), felons are just people and deserve to be considered fairly with everyone else and (2) that to treat felons as people who are lesser than others for life demeaning them is wrongful discrimination which this chapter set out to do While I believe thus far I have been successful at this task showing the creation of the legal definition of felon and its inherent limitations because of the law ( C hapter O ne), detailing those limitations ( C hapter T wo), exploring their near impossibility to escape ( C hapter T hree), and showing that civil disabilities are wrongful discrimination under Fiss, Ely, and Hellman's models ( C h apter F our) there is still one area left to discuss : are civil disabilities a form of civil death?

PAGE 108

100 CHAPTER V ARE CIVIL DISABILITIES A FORM OF CIVIL DEATH? In this final chapter, I write about whether or not civil disabilities are a form of civil dea th. Arguing that civil disability is a form of civil death is not a clear cut argument because there are many similarities and differences (for instance, today, it is more difficult to rent a place than to buy one with a felony; however, inability to own prope rty is a key tenet of classical civil death) This means that order to understand what civil death really is and to make an argument that felons are or are not civilly dead I need to explain it in more depth: historically, in the abstract, and as an existential reality for felons today. Therefore, I ask are civil disabilities a form of civil death? To this point, Black's Law Dictionary quotes William R. Anson: Civil death arises from outl awry; it seems doubtful whether there are any other circumstances to whi ch the phrase is now applicable (9th ed. s.v. "Death" ; Anson 1919, 193 ). While there are certain reasons to disagree with Anson entirely, it is highly doubtful that Anson was anticipating the mass incarceration or war on drugs in the U.S. of our time, the vast increase in U.S. civil disabilities, or the digital capabilities that create a situation in which a person's background can be checked in minutes by virtually anyone, let alone the conditions technology and glo bal capitalism would create. But with that in mind, let me test his statement: is civil death an antiquated product of bygone era or has it just found a new form in our culture? Does c ivil death arise only from outlawry? Are civil disabilities equivalent to civil death ? How different are times now?

PAGE 109

101 Outlawry First, what is outlawry? Does civil death only arise from outlawry? Have we really moved past outlawry? As Anson suggests, outlawry is a historical term related to bestowing or living with civil death: Black's says, "outlawry. 1. Hist The act or process o f depriving someone of the benefit and protection of the law. 2. The state or condition of being outlawed; the status of an outlaw. 3. Disregard or disobedience of the law. See SACER; CONSECRATIO CAPITI S (9th ed. s.v. "outlawry"). I n the first sense, out lawry is the performative action taken to declare someone so civilly dead that they no longer even have a right to live ( and their murder is no longer a punishable offense). In the second sense, it means being an outlaw (or the legal fictions we need to de scribe it when it happens to others). In the third, it is doing the things that outlaws supposedly do (disregard the law) the things that justify their status as outlaws. To disregard the law is to live a life of lawlessness and to be a pariah, deserving o f outcast status through actions supposed or actually enacted. As Black's hints at, outlawry is a carry over from Rome. Consecratio capitis is the Roman name for definition one of outlawry above: the judgment and resulting action (s) creating "a felon" and constituting it through shared legal and cultural processes Black's says, consecratio capitis [Latin "consecrating the body"] Roman law The act of declaring a wrongdoer an outlaw who could be killed on sight; the punishing of criminal behavior by relegating an offender to the gods, i.e., leaving the person outside divine and human protection. See SACER; OUTLAWRY (9th ed. s.v. consecratio capitis ") Similarly, sacer is the name for definition two, the punishment itself: sacer adj. [Latin sacred; forfeited to a god ] Roman law. (Of an outlaw or a wrongdoer) punished by being placed outside the law's protection. Se e CONSECRATIO CAPITIS ; OUTLAWRY

PAGE 110

102 ( Black's Law Dictionary 9th ed. s.v. sacer "). Thus, to be an outlaw in Rome was quite literal: a person is out of the law (at least insofar as a person's rights and protection are concerned) a nd the entire community knows this As one m ight expect, there is quite a bit of evidence that civil death, like many customs in Western cultur e, was imported from Rome. According to some historical models, early medieval England adopted many of these laws, but often gave them different names In fact, a law similar to consecratio capitis is called caput lupinum ("the head of the wolf") in Mediev al English Law. Generally, a criminal is declared caput lupinum only after a pronouncement of "caput gerat lupinum [Latin "let him bear the head of a wolf"] Hist An outlawed felon considered a pariah a lone wolf open to attack by anyone. See OUTLAWRY ( Black's Law Dictionary 9th ed. s.v. caput gerat lupinum "). Meaning that caput lupinum was not necessarily a direct ramification of being a felon. However, this may be a bit more widespread than it seems (or was always already ideologi cally based). For example, Pollo ck and Maitland write of the time before Edward I (pre 1230s), h e who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn hi s house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a friendless man,' he is a wolf.... Caput gerat lupinum in these w ords the court decreed outlawry ( 1899, 449 ; Black's Law Dictionary 9th ed. s.v. caput gerat lupinum ) In other words, an outlaw was thought of as someone outside of society, someone to slay. For an outlaw, this would be felt in a visceral way: I am a thing to be killed, a wild animal. So, now I explore how this affect s a felon' s existenti ality.

PAGE 111

103 Corporeality of the Outlaw To be an outlaw is to exist outside of the law, not above it. The laws no longer protect a person but that person is still not immune from the laws either: a person can still be held accountable for something else, but there is nothing about the outlaw that anyone else is accountable for if they harm or kill the outlaw This creates a certain corporeal punishment: one's life itself is the punishment because one is never safe First, the outlaw must exist outside of socie ty, without any of its protections, which in essence turns them into an animal because they are put into nature alone, where death or physical danger is imminent and they are 100% responsible for all of their needs and safety A nyone can kill them because they are considered a wild, dangerous animal now (not just carrying, but becoming the wolf). Second, this danger itself is a punishment leaving the final danger that kills an outlaw in God's hands: when is God to strike the outlaw down for their wickedness? Third, outlawry also removes the outlaw from society and their "human" life: friends, home, livelihood, family, spouse, etc. Now, they must exist as a physical being in a state of nature worse, in a literal experience of "me against the world Along with this there was a common law process for following and capturin g felons called hue and cry ," which is from the Latin, hutesium et clamor "with horn and with voice" (Cannon 2009, s.v. "hue and cry") Any member of the community could make the cry and everyone "was duty bound to sea rch and pursue on horse or foot (Cannon 2009, s.v. "hue and cry"). Anyone who did not join the pursuit could be considered an accomplice. And it was already assumed that the party being pursued was guilty: "pursuit c onstitute d proof of the criminal's guilt ( The Oxford Dictionary of the Middle Ages 2010, s.v. "hue and cry"). However, The Dictionary of British History points

PAGE 112

104 out that, "The main statutes and amendments (1285, 1585, 1735) were repealed in 1827, though the element of citizen's arrest' has persisted (Cannon 2009, s.v. "hue and cry"). While much of the above is law from the time before Edward I (1230s+), the Oxford Dictionary of the Middle Ages writes that outlawry was a bit more widespread and tame in s ome cases than one might imagine, i n the AN 5 period, English outlawry practice was essentially a means of compelling contumacious criminals to stand trial before royal justices. By the 14th century, English law allowed outlawry to be applied not only in felony cases but also in misdemeanour and civil cases. Late medieval outlawry seems not nearly so harsh or final as the earlier practices, so that often outlawry cou ld be removed with small fines ( 2010, s .v. "outlawry") This allows me to give a partial answer to the question, "does civil death arise from outlawry? No, outlawry is a form of civil death, the loss of rights. To make this clearer I need to explore civil death in more detail. Death and Civil Death Before explorin g civil death, let me look a bit at the larger term "death Black's Law Dictionary defines it as d eath 2. In some states, the loss of rights such as the rights to vote and hold public office by a person serving a life sentence. Cf. civil disability under D ISABILITY (3) (9th ed., s.v. death "). This is worth a deeper look. First death in this regard is the loss of certain rights. But what do rights in this narrow legal sense mean ? Well, Black's says that rights are 1. That which is proper under la w, morality, or ethics . 2. Something that is due to a person by just claim, legal guarantee, or moral principle . 3. A power, privilege, or immun ity secured to a person by law < the ri ght to dispose of one's est ate>. (9th ed., s.v. right ") 5 Anglo Norma n Period, generally, 1100 1500.

PAGE 113

105 This explains the death aspect in our society : to take someone's "natural rights" 6 their property, privileges, liberty, etc., away is to take away their life to kill them in society However, even without natural rights, death is similar for banishment/outlawry as well: if someone is banished/an outlaw, they are "dead to us Banishing also means starting all over again from scratch because after a person's house and stuff have been seized and their rights revoked, they have no stake in the community, no worldly possessions, no life and outlawry means that a person can be killed with immunity. Or in terms of strictly legal rights, if rights no longer apply t o a person they are no lon ger "a person" because people have rights. Though, it should be added that in our society, a person serving a life sentence or even on death row is not fully dead in legal sense like an outlaw would have been : prisoners still hav e certain rights (for example, due process, prisoners rights, ability to marry have children ) albeit in a highly restricted way. Second point of interest is that this definition says that a person serving a li fe sentence loses these rights; however, the definition points out two collateral consequences/civil disabilities that arise just from being a felon in certain areas of the country not just for people serving life sentences In fact, it would not be the life sentence, but the collateral consequen ces/civil disabilities of convicted felons in the state they were convicted in (e.g. whether or not that state allowed people in prison any kind of political freedom in prison) that created the loss of rights creating the civil death as defined in the def inition from Black's For instance, Maine and Vermont allow prisoners to vote and Vt. Stat. Ann. t it, ¤ 2353 (2002) technically would allow a prisoner to run for 6 Compare with Latin i$ s, i$ ris soup, broth, law, right, court, jurisdiction, etc. ( Cassell's 1987, s.v. i$ s ). The Roman s meant "what you deserve" in all senses by "right" : you made the soup, now you have to enjoy the broth.

PAGE 114

106 office because it "only requires a candidate to get enough signatures to be put on the ballot" ( Steinacker 2003, 803 804 ). Similarly on a Federal level, anyone can run for president. F or example, Eugene Debs who ran for president in 1920 from behind bars and received almost four percent of the total vote As I wrote in the last chapter this is bec ause civil disability is a civilly imposed punishment : a felon can only not run for office where overtly banned from it One could argue that another major issue is the physical inability to serve an office one could not actually occupy Though, given the rapid advancement of technology, this specific rebuttal could become moot rather soon ; however, given the power and juridical constraints and goals of D.O.C.s across the U.S. to restrict prisoners' communications with the outside world, this kind of abilit y for prisoners to communicate with outsiders quickly and easily would likely not be a popular agenda. Though, cases like that of Robert Battle, a Chicago councilman who was recently sworn in while in jail without bond eligibility awaiting trial for first degree murder that supposedly took place during a drug deal is putting these kinds of questions to the test (Miller 2016). So, is this to say that losing these rights is death (i.e. civil disability is a type of civil death) or that civil disabilities/los s of rights are only equivalent death for people serving life sentences? Or is the life sentence the death ? If so, then, why not say that ? The first reading, losing the rights is equivalent to death, does not seem to be in the text (it says, "by a person serving a life sentence") and the second, only people serving life sentences experience the loss of these rights, does not make sense: why would someone serving a life sentence think they could hold public office while inca rcerated ? Why would the public be so foolish as to vote for someone incarcerated for life that could not hold the office at that time ? While a case could be made that life sentences are not

PAGE 115

107 necessarily for someone's entire life, at least while incarcerated it would be difficult to fill an office. At least until Internet and other communication devices are more commonplace in prisons, which is a doubtful proposition. Though, this too brings up an interesting point because a s tate, for instance, Texas, can m ake it illegal for a felon to run for state offic e [ Tex. EL. Code ANN ¤ 141.001(a)(4)] ; however, state felonies do not disqualify someone from taking federal office. A s a Congressional Research Service report points out, "the conviction of a crime which constitutes a felony, can not constitutionally disqualify' one from being a Member of Congress (unless that conviction is for certain treasonous conduct after having taken an oath of office). ..." (Maskell 2002, 3). However, in other states, for inst ance Colorado, a felon cannot vote while incarcerated or on probation or parole, but after serving their time can vote, sit on juries, and even be a state politician, but those who run are usually years past their felony. And there are some politicians wit h criminal records. For instance, Republican Tom Jani ch of Brighton (says), It is my reco rd. I have got to own up to it" But the 48 year old said his run ins with the law happened when he was younger, and he now h as a record of public service. Heck, if everyone in Adams County who ever drank one too many or smoked a joint would vote for me, I'd win in a landslide (Bartels 2010) Il linois has similar laws, but has had problems with corrupt politicians doing things like winning office while awaiting trial in jail without bail for murder in cold blood like Robert Battle or running for office again after serving time for corruption in office like Isaac "Ike" Carothers Third, which states does this reference? It is unclear, but Maine and Vermont never di senfranchise felons and as of 2016, only Florida and Iowa perman ently disenfranchise unless/until a fe lon gets a gubernatorial pardon ( National C onference of

PAGE 116

108 State Legi slatures 2016 ). Finally, the definition's reference to civil disabi lity adds to the confusion. W hat is happening here? Is the definition withholding something (namely: the legal freedom to argue that civil disabilities are equivalent to civil death for all people who have them)? Is death the highest category on the spectrum of civil disabilities? Are some felons more or less dead than others? Civil Death, Monastery Life, and Forfeiture Further down in the Death definition, Black's Law Dictionary gives a hint of where this trend is coming from: C ivil death 1. Archaic At common law, the loss of rights such as the rights to vote, make contracts, inherit, and sue by a person who has been outlawed or convicted of a serious crime, or w ho is considered to have left the temporal world for the spiritual by entering a mon astery. Cf. DE CATALLIS FELONUM (9th ed., s.v. death ") Now, this sounds familiar : civil disabilities! I t would seem as if we have s ome reason to believe that there is a correlation between civil disabilities and civil death. But the question is still are civil disabilities equivalent to death? Is death the maximum amount of civil disability? But first, what about entering the monaster y? Black's quotes Pollo ck and Maitland, a monk or nun can not acquire or have any proprietary rights. When a man becomes "professed in religion," his heir at once inherits from him any land that he has, and, if he has made a will, it takes effect at once a s though he were naturally dead (9th ed., s.v. death ") However, it should be noted that civil death happened for the clergy because of Benedict's Rule (a book of rules written around 530 C.E.), not because most clergy are criminals. These rules spread throughout the Catholic Church as a whole and became church law. Chapter 33 specifically forced clergy to have no worldly possessions (e.g.

PAGE 117

109 they need per mission to have a book) so they could be closer to God. 7 Of parti cular interest is this section: T hey are not permitted to have even their bodies or wills at their own disposal; but for all their necessities let them look to the Father of the monastery. .. let no one say or assume that anything is his own. If he fails to amend, let him undergo punis hment (Benedict, under Whether Monks Ought to Have Anything of Their Own" ) Monks do not even own their own bodies or wills. I n a certain sense, they have less than felons! In fact, it could easily be argued that Benedict's Rule made taking the "benefit of clergy" a possibility: the church offered a certain death/punishment from this life ( consecratio capitis and sacer to the Christian God! They are in God's hand now... ). Benefit of clergy was fought for by Archbishop Thomas Becket and conceded by Henry II in 1176 in the aftermath of Becket's murder. It exempted clergy from trial or sentence in a secular court on charges arising from a range of felonies and offences. This exemption was allowed to all who could prove themselves literate by reading a verse of Scripture. It was abolished by Parliament in 1827 (Cannon 2009, s.v. "benefit of clergy") W hile the church could offer sanctuary and a few felons escap ed there; however, the vast majority of felons experienced torture, branding (physical scarlet letter!), excruciating executions, banishment, removal of rights, etc. Continuing with the question "are civil disabilities equivalent to death?" Black's Law Dictionary has an entry for De Catallis Felonum Hist. A 1326 statute providing that a felon forfeited his or her personal property and also lost all rights and means of acquiring property. This statute is one of the earliest written laws imposing civil d eath" (9th ed., s.v. de catallis felonum "). However, laws like this likely existed earlier. For 7 C.f. Acts 4:32 (NIV): "All the believers were one in heart and mind. No one claimed that any of his possessions was his own, but they shared everythi ng they had

PAGE 118

110 example, number 33 in The Magna Carta (1215): "We will not retain beyond one year and one day, the lands those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs (Barons 1999, under "Magna Carta"). Or in late 13th century Chronicle of Robert of Gloucester (9668) which says, "Al !at !e felon hath, !e kinges it is" 8 (OED Online 2015, s.v. "felon"). De Catallis Felonum is a Latin phrase meaning "chattels of felons". The law served a double purpose: to constitute social death and to keep property safe until conviction or dismissal. In other words, from deep in the history of English law, which American la w is based on in many ways, there has been a concern about the seizure of a felon's property for hundreds of years! In fact, this idea of death is so literal that originally, coroners were responsible for valuing and caretaking the goods of the king that w ere his or became his because they had no owner ( after the owner's death ). Coroners, f rom the Latin, custos placitorum coronae "keepers of the pleas of the crown", had one real purpose: Their main purpose was to protect the Crown's financial interests fro m corrupt sheriffs. In medieval times, their jurisdiction extended to treasure trove, wrecks of the sea, catches of royal fish (whales and sturgeon), and valuing the goods and chattels of felons and outlaws (Cordner and Loff 1994, 799 801) W hen someone died (at least in a legal sense), the coroner was to take care of their possessions and deliver them to the king; however, "By the late 15th Century, coroner's fiscal powers had been take n over by justices of the peace (Cordner and Loff 1994, 799 801). Si milarly there were abjurations of the realm (1100 1500) where as part of a plea bargain of sorts, a felon would swear their stuff to the realm and then be taken somewhere beyond the kingdom never to return "Abjurers were required to select a port 8 = th, gen erally.

PAGE 119

111 of depa rture a nd to behave as penitent exiles ( The Oxford Dictionary of the Middle Ages 2010, s.v. "abjuration of the realm"). And also escheats, wherein the property of a felon would revert to the lord when he was found guilty or died without h eirs ( The Oxford Companion to Family and Local History 2008, s.v. "escheat ) L ike civil death, here is a two fold nature to De Catallis Felonum : (1) if someone commits crimes deemed heinous enough to be a felony (and allowed to live after physical punishment), they are punished by losing all their stuff and rights to new stuff and (2) once someone is banished, killed, etc. ("dead"), something must be done with their stuff. And regardless of if someone is physical ly killed, invited into a monastery (join the spiritual kingdom: a bizarre form of "death"/"afterlife"), banished, deprived of many rights, or imprisoned for life what ought to be done with their leftover stuff or stuff they are no longer legally entitled to becomes a question. In short, there were four ways that civil death could be applied: joining a religious order; abjuration or f light; banishment or exile; or a bill of attainder. In all forms of civil death, there was forfeiture of possessions and righ ts as I have s hown In an attainder or "corruption of the blood the convict also cannot pass down their property ( Guenther 2013, xviii). A s Guenther points out, "While attainder is forbidden by the U.S. Constitution, various forms of civil death persist today in the form of felon disenfranchisement ( 2013, xviii). Later, Guenther writes that t o be socially dead is to be deprived of the networks of social relations, particularly kinship relations, that would otherwise support, protect, and give meaning to one's precarious life as an individual. It is to be violently and permanently separated from one's kin, blocked from forming a meaningful relationship, not only to others in the present but also to the heritage of the past and the legacy of the future beyo nd one's own finite, individuated being ( 2013, xxi) While there is more to civil death than what I have covered here, this gives one a good

PAGE 120

112 idea of some of the trends and ideologies that inform ed British Common Law and then American Law and it gives one enough to answer the question are civil disabilities equivalent to death? Is death the highest category on the spectrum of civil disabilities? Are some felons more or less dead than others? Is Civil Disability a New Form of Civil Death? To begin to answer these questions, I posit the following model of a spectrum of life and death in societies with "death" in sense other than physical death. This model begins with birth, which is how many people are introduced to the community and all are introduced to lif e Generally, one grows toward citizenship and eventually to physical death ( morte for clarity). Life Death Birth Citizenship Morte < -------------------------------| ----------> In this first, simple model, to be born is to have life and be given citizenship. To die is physical death, which kills your citizenship because you can no longer have or enact it. But to get to our current model, we have to add the concept of civil death. When considered from a l egal standpoint (accepting the legal fiction of civil death as the full loss of rights), then to fully die in a legal sense ( to have no rights at all ) is to be an outlaw or to be executed if one were to think of outlawry as full le gal "death" without physically dying ; however, outlaw status also means to be open to being murdered without possible legal recourse by others making it more stringent than death and couched in less legality than an execution (the criminal to be executed still has the possibility of some rights) Outlawry, in other words is a stringent type of civil death

PAGE 121

113 removing all rights but while an execution/" capital punishment" is the farthest one can go the party to be executed, at least in our times, still has some rights Graphically, it look s like the following: Life Death (Birth) (Citizenship) (Prison) (Life Sentence) (Outlawry) (Execution) ( Morte ) < -----------------------------| ----------------------------------------------| ---------------> Civil Death Physical Death This layout makes sense of the spectrum of punishments. A life sentence is in many ways a form of civil dea th because a person's life as they knew it is over; however, they are still within the confines and laws of the society they have rights (albeit limited rights), and their death matters. To be an outlaw is to be civilly dead in a wa y that cannot ever be o vercome: it is possible for people to serve life sentences and still get out of prison as old men but no one comes back from outlawry. And of course, execution is the most extreme form of civil death as in that case someone is killed by society. Though, it is worth noting that outlawry, unlike execution and life sentences, does not exist in American Jurisprudence. Rather, here it is a placeholder and a way to discuss civil death. But where does that leave civil disability? If one take s the metapho rical ("fictional") discussion thus far seriously, then civil disability is just that: it is to be legally maimed or unable to do certain things. It is to be straddling life and death: to have one foot in the (legal) grave. Though, while this new identity label is oppressive, it is not necessarily the end of one's civic (and maybe physical) life as it was in M edieval times. Nor is it a full loss of rights. But it should be noted that the label differentially affects different groups of people and individual s based on the areas of marginalization they occupy and their

PAGE 122

114 specifics. For instance, some statistics show that a white man with a felony is more likely to get a job than a black man without a felony for instance the research done by Pager (2007) shows a white felon is half as likely as a white non felon to get called back for a job, whereas a black felon is one third as likely to get called back as a black non felon Interestingly non felon whites are over twice as likely to get a call back as non black felons ; white felons are three times more likely to get a call back than a black felon; and white felons are a little more likely to get a callback than a black non felon (17% vs. 14%) (Pager 2007, 91). So, this means that while a felony drastically decreases a white man's opportunities of finding a job, statistically speaking, it just evens the playing field and makes him equivalently hirable to a black man without a felony. Whereas, a black man with a felony is highly unlikely to get a job statistically speakin g, at least. This is a reminder that felonies exist as one of many potentially overlapping areas of marginalization. F urther depending on their crimes, a felon may be more or less suspect to people in their post incarceration lives. For instance, certain sex offenders are listed as level three offenders or higher and when they move into a new area, the news media will spread their info rmation on air or on their site and maybe Facebook. T o make room for these elaborations, the model will now look like this : Life Death (Birth) (Citizenship) (Prison) (Life Sentence) (Outlawry) (Execution) ( Morte ) < -----------------------------| ----------------------------------------------| ---------------> Civil Death Physical Death | --Civil Disability ---| In other words, I seek to propose that for the vast majority of felons, civil

PAGE 123

115 disability is similar to, but not synonymous with, civil death. When looking at the definition of death (loss o f rights and forfeiture), it is easy to see that civil disability is definitely a loss of rights and often entails a forfeiture and fines; however, the loss of rights are not final and still allow a felon the opportunity to live within society albe it with significant hindrances In fact, now, it is much easier to purchase a home as a felon than i t is to find a place to rent! Therefore rather than thinking of most felons as "dead ," it is more apt to think of th em as civilly maimed They can do some things, but not everything a free person in the U.S. can do and they have little legal recourse to do anything about it. Thus, to finish up my model, I must add a category for civil maiming. This category will help us to explore the cases in which civil d isabilities are not just a crime related disability, but actually begin to create the issues discussed in this thesis: the links between recidivism and civil disability, the vast sea of irrelevant disabilities, the belief that felons will always be criminal, the race and criminality links, etc. Life Death (Birth) (Citizenship) (Prison) (Life Sentence) (Outlawry) (Execution) ( Morte ) < -----------------------------| ----------------------------------------------| ---------------> Civil Death Physical Death | --Civil Disability ---| | --Civil Maiming --| In summation, it is my contention that when civil disability becomes civil maiming it is wrongful discrimination Having a few restrictions relevant to crimes committed is something many people would not have issues with (for example, banning

PAGE 124

116 pedophiles from teaching K 12); however, when these restrictions hinder people from accessing government benefits, finding ma ny (or gainful) jobs, finding housing, entering entire career fields, becoming union leadership, owning firearms, voting sitting on juries, running for state office, and all the other disabilities mentioned in this thesis, this is truly a mai ming of someone s citizenship How do we expect people to move on with their lives and rejoin society when we block many avenues to do so? Why do we expect anything other than an over 70% recidivism rate when we release maimed quasi citizens back into society? Honestly, we cannot expect people to easily move on when there are so many roadblocks in their way. When citizens are civilly maimed, which adds to the problems of crimes of desperation, all we can expect is that they do what they can to get by, which often will entail criminal activ ity. And for these reason s civil maiming must be pulled out into the open, discussed, and worked on because until our society does, we will continue on having the same problems on a never ending loop and blame felons for it when the cause is much more societal than radical free choice or some evil criminal nature Conclusion Social Death, Civil Death, Civil Disability Reconsidered At this point, I have explained felonies, the civil disabilities made the case that civil disability is often a type of invidious discrimination because many of them are completely irr elevant to the crime committed argued that civil disabilities based on the cri mes committed have a much more rational "rational basis" described how civil disabilities fuel recidivism, and pointed out that while civil disability could be considered civil death, it is better thought of as occupying a place between civil life and civil death : civil maiming Therefore, in many ways, the term civil maiming is a more apt term than

PAGE 125

117 civil disability to describe just how civil disabilities are a form of invidious or wrongful discrimination While two people may disagree about the claim that a felon is disabled via their identity within a group created solely by the government, they would have to agree that this disability limits and puts barricades around a felon's ability to progress as a h uman being effectively maiming their citizenship A bipartisan nexus of laws creates this cluster of limitation s. These laws hinder felons from finding employment in most fields other than in some areas of manufacturing, sales janitorial restaurants, la ndscaping, and autom otive (read: highest quality of life possible for many felons is lower middle class) ; getting licensed or certified through regulatory boards; finding a place to rent without a tremendous amount of effort or luck; getting governmental assistance ; voting, sitting on a jury, or running for office ; working in a union; and a few other activities generally thought of as open to a ny free citizen in the United States. While depending on the state/jurisdiction, crime, conviction, and a few othe r variables, these disabilities can last anywhere from a few months ( e.g., the 6 month ban on driver's licenses most states have because of D.O.T. funding requirements; some states have temporary bans on jury duty and voting) to life ( e.g., some employers will not hire and most rental companies will not rent to felons for life; some states ban felons from voting or taking office for life) And what is interesting is that we know this cluster of limitations poverty, desperation, lack of legal opportunities, and the opportunity to make money doing illegal things fosters the exact conditions we know create crime worldwide. E ven El Chapo said this to S ean Penn in his odd interview after Sean Penn asked how he go t into the drug business. El Chapo said, w ell from the time I was 15 and after, where I come from, which is the municipality of Badiraguato, I was raised in a ranch named La Tuna, in that area,

PAGE 126

118 and up until today, there are no job opportunities. The only way to have money to buy food, to survive, is to grow poppy, marijuana, and at that age, I began to grow it, to cultivate it and to sell it. That is what I can tell you (Penn 2016, 16) And yet, civil disabilities are not only rarely questioned in the public or government, but many people actively support them under the umbrella of a quasi consequentialist prayer to save the society at large from the dangers of felons (read: civil death masked as helpful to society, whil e ignoring the problems it creates ) or a mean spirited desire to punish people indefinitely. Yet, after the exploration of these limitations, how can we think of civil disabilit y as anything other than civil maiming? In what ways does this treatment of part of the populace actually fix any societal ills or prevent more problems from occurring? I n short, civil maiming does not fix or prevent any of those things: in fact, it hinders society by creating more crime s of need, more poverty, more disadvantages and more separation between people. It leaves an entire class of people maimed. But what does that really mean for felons and for readers of this thesi s ? Well, felons are left with a mixed bag: do they approach life as a felon and work for the betterment of a ll felons or do they stick it out in their life by "passing"? Is the label really something a felon need s to take on as their identity when it is not an identity most would have chosen for themselves for life? What effect does taking the label felon have o n someone's understanding of self? What does this mean for a felon's life? I imagine this is pretty similar across the mind s of many felons. Who says, "Yes, I really want to have problems getting jobs and apartments because I am labeled a criminal for life?" I know I do not want to be labeled a criminal for life and often do not correct people when they misread me as well educated, affluent, and without a criminal record because I am an eloquent white man who has gone to graduate school Honestly, w hen it makes my life

PAGE 127

119 easier and actually is irrelevant to the vast majority of what I do why should I? Why should I live in this perpetual state of feeling like a criminal when it has been almost a third of my life since I finished my sentence? Most felon s, myself included, just want to move on with their lives, and yet we are constantly hindered by the past While many of us want to move on, society will not let us. And this is a massive burden: to be constantly reminded of and to have to explain somethin g that happened many years ago is beyond tiresome. So, while the push for a felon rights movement would likely help more felons to make it through, it invites all of the discriminations anyone who has been out of prison parole, or probation has worked so hard to get past to be placed on them again. F or scholars, academics activists, and people interested in legal scholarship and social justice, it means that we need to deeply think about John Ely Hart's position: as long as felons are thought of as second class citizens and there is not a major upswi ng in societal support for felons (and probably a grassroots and civil rights movement of some kind ran by felons ), felons will forever be repeat losers in our pluralistic society. And upon this irony I end: we live in a country that purports to be the lan d of the free, yet, when compared to other developed countries, we have some of the most restrictive policies for felons and some of the highest rates of incarceration. We believe in and love second chances underdogs, comebacks, reinventing ourselves, embracing eccentricity, and the ability of individuals and private interests to have an effect on society. Yet, felons, for some reason, are not afforded these sets of forgiveness, comebacks, reinventing themselves, and se cond chances. Instead, their citizenship is maimed. In my mind, the fact that members of society are not outraged by or worse those who write this discrimination off as a societal benefit the lack of freedom experienced by felons is

PAGE 128

12 0 the larger issue. Once societal opinion shifts, political trend s will shift. As long as the common person does not care if a felon faces government sponsored discrimination after finishing their sentence, there will be no changes. U ntil then, felons will be the civilly maimed, the underclass I hope this ch anges, but only time will tel l.

PAGE 129

121 REFERENCES Americ an Bar Association. Collateral consequences of criminal conviction interactive m ap. American Bar Association Criminal Justice Section. www.abacollateralconsequences.org ( a ccessed February 12, 2016). A merican Civil Liberties Union. State criminal re enfranchisement laws (map) American Civil Liberties Union. www.aclu.org/map/state criminal re enfranchisement laws map ( accessed March 2, 2016). Anson, William R. 1919. Principles of the law of c ontract 3 rd ed. Ed. Arthur L. Corbin. New York: Oxford University Press. Barons, English. 1999. Civil r ights in America Woodbridge, CT: Primary Source Media Available at Gale Group ( accessed June 20, 2015) Bartels, Lynn. 2010. For the record, some Col orado candidates have a record. Denver Post September 29. http://www.denverpost.com/campaign/ci_16191395 (accessed June 12, 2015 ) Benedict. 1949. The holy r ule of St. Benedict Trans. Rev. Boniface Verheyen. Grand Rapids, MI: Generic NL Freebook Publisher, n.d. eBook Collection (EBSCOhost) http://0 search.ebscohost.com.skyline.ucdenver.edu/login.aspx?direct=true&db=nlebk&AN=200 9037&ebv=EB&ppid=pp_COVER ( accessed Ju ne 20, 2015). Black's law d ictionary 2009. 9 th ed. A vailable at Westlaw BLACKS (accessed April 1 November 15 2015). Bushway, Shawn. 1996. The impact of a criminal history record on access to legitimate employment. PhD diss., Carnegie Mellon University. Cannon, John. 2009. A dictionary of British h istory London: Oxford University Press. http://0 www.oxfo rdreference.com.skyline.ucdenver.edu/view/10.1093/acref/9780199550371.00 1.0001/acref 9780199550371 e 1762 ( accessed April, 2015). Cassell's Latin & English d ictionary 1987 Reprint. New York: Macmillan Publishing Castle, Caroline. You call that a strike? A post Rucker examination of eviction from public housing due to drug related criminal activity of a third p arty. Georgia Law Review 37, no 4 (June 2003): 1435 1471. www.lexisnexus.com/ hottopics/Inacademic ( accessed March 1, 2016).

PAGE 130

122 Centers for Disease Control and Prevention 2014. Alcohol deaths. www.cdc.gov/features/alcohol deaths ( accessed March 10, 2016). Centers for Disease Control and Prevention 2015. Drug o verdose d eaths hit record n umbers in 2014 www.cdc.gov/media/releases/2015/p1218 druvg overdose.html ( accessed March 10, 2016). C enters for Disease Control and Prevention 2016. Tobacco related mortality. www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobac co_related_mortalit y ( accessed March 10, 2016). Colorado Department of Corrections. Faith and Citizens Program. 2013. Volunteer h andbook Basic Volunteer Training c lass handout, Denver Women's Correctional Facility, Denver, CO. 2015 Cordner Stephen and Beb Loff. 1994. 800 Years of coroners: Have they a f uture? The Lancet (British Edition) 344, issue 8925 (September): p799 801. htt p://0 search.ebscohost.com.skyline.ucdenver.edu/login.aspx?direct=true&db=aph&AN=94101 81766 ( accessed June 20, 2015). Ely, John Hart. 1980. Democracy and d istrust : A theory of j udicial r eview Cambridge, Mass. : Harvard University Press European Commissi on. 2016. ECRIS (European Crimi nal Records Information System) ec.europa.eu/justice/criminal/European e justice/ecris/index_en.htm ( accessed March 2, 2016). Fe deral B ureau of Prisons. 2015. Inmate s tatistics: Offenses. http://hdl.handle.net/2027/pur1.32754067535504 (accessed February 12, 2016). Fiss, Owen. 1976. Groups a nd the Equal Protection Clause. Philosophy and Public Affairs 5, no. 2 (Winter ): 107 177. http://0 www.jstor.org.skyline.ucdenver.edu/stable/2264871 (accessed February 12, 2015) Geiger, Ben. 2006. The case for treating e x offenders as a s uspect class. California Law Review 94 no. 4 ( July ): 1191 1242. http://0 www.jstor.org.skyline.ucdenver.edu/stable/20439062 (accessed January 12, 2015). Guenther, Lisa. 2013. Solitary confinement: s ocial death and its a fterlives. Minneapolis, MN : University of Minnesota Press. Hellman, Deborah. 2008. When is discrimination w rong? Cambridge, Mass.: Harvard University Press. Legal Action Center. Overview of state laws that ban discrimination by e mployers. Legal Action Center. Lac.org/toolkits/standards/Fourteen_State_Laws.pdf

PAGE 131

123 ( accessed March 12, 2016). Maskell, Jack. 2002. Congressional c andidacy, incarceration, and the constitution's inhabitancy q ualification CRS Report No. RL31532. Washington, DC: C ongressional Research Service http://assets.opencrs.com/rpts/RL31532_20020812.pdf ( accessed June 11, 2015.) Miller, Michael E. 2016. Meet the midwester politician sworn into office while in jail and awaiti ng trial for murder. Washington Post January 25. https://www.washingtonpost. com/news/morning mix/wp/2016/01/25/meet the midwestern politician sworn into office while in jail on murder and drug charges/?tid=ss_fb (accessed March 12, 2016). National Conference of State Legislatures. 2016. Felon voting r ights http://www.ncsl.org/research/elections and campaigns/felon voting rights.aspx ( accessed June 15, 2016). The Oxford companion to family and local h istory 2008. Ed. David Hey. Londo n: Oxford University Press http://0 www.oxfordreference.com.skyline.ucdenver.edu/view/10.1093/acref/9780199532988.00 1.0 001/acref 9780199532988 e 651 ( accessed June 21, 2015). The Oxford d ictionary of the Middle Ages 2010. London: Oxford University Press. http://0 www.oxfordreference.com.skyline.ucdenver.edu/view/10.1093/acref/9780198662624.00 1.0001/acref 9780198662624 e 2919 ( accessed April, 2015). Oxford English dictionary (OED) o nline 2015. London: Oxford University Press. http:// 0 www.oed.com.skyline.ucdenver.edu/view/Entry/54060?redirectedFrom=discrimination (accessed August 09, 2015). Peace Corps. 2015. Peace Corps l eg al i nformation. http://www.peacecorps.gov/volunteer/learn/howvol/legal/ ( accessed October 21, 2015). Penn, Sean. 2016. El Chapo speaks: A secret visit with the most wanted m a n in the w orld. Rolling Stone January 9. http://www.rollingstone.com/culture/features/el chapo speaks 20160109 ( accessed March 2, 2016). Peterson, Laura. 2013. Collective s anctions: Learning from the NFL's justifiable use of group punishment. Texas Review of Entertainment and Sports Law 14, no. 2 (May) : 167 179. http://0 web.b.ebscohost.com.skyline.ucdenver.edu/ehost/pdfviewer/pdfviewer?sid=7c7219cb 9abe 4d35 9df5 5333f54c23e8%40sessionmgr120&vid=3&hid=107 ( accessed March 1, 2016).

PAGE 132

124 Pager, Devah. 2007. Marked: Race, crime, and finding w ork i n an era of mass i ncarceration Chicago: U niversity of Chicago Press Pollock, Frederick, and Frederic W. Maitland. 1898 The h istory of English l aw before the t ime of Edward I 2nd ed. Cambridge: Cambridge University Press. http://babel.hathitrust.org/cgi/pt?id=mdp.39015008855382;view=1up;seq=11 ( accessed April 3, 2015). Sakala, Leah. 2014. Breakin g down mass i ncarceration in the 2010 census: State by state incarceration rates by race/ethnicity. Prison Policy Initiative. http://www.prisonpolicy.org/reports/rates.html ( accessed February 6 2016). Steinacker, Andrea. 2003. The p risoner's c ampaign: f elony d isenfranchisement laws and the right to hold public o ffice BYU Law Review 801 no. 2 (May ) http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2167&context=lawrevie w ( accessed March 12, 2016). The Servant Center. AmeriCorps members: Eligibility requirements. AmeriCorps. http://www.theservantcenter.org/AmeriCorps/AmeriCorpsMembers.aspx ( accessed October 21, 2015). Tran Leung, Marie C 2015. When discreti on means d enial: A n ational p erspective on c riminal r ecords barriers to federally subsidized housing. Sargent Shriver National Center on Poverty Law. http://povert ylaw.org/sites/default/files/images/publications/WDMD final.pdf ( accessed February 21, 2016). U.S. Bureau of Justice Statistics. 2003. Recidivism of sex offenders released in 1994 by Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose. Special Rep ort NCJ 198281. http://www.bjs.gov/content/pub/pdf/rsorp94.pdf (accessed August 10, 2016). U.S. Bureau of Justice Statistics. 2014. Prisoners in 2013 by Anne E. Carson. Special Report NCJ 247282, Bureau of Justice Statistics. http://www.bjs.gov/content/pub/pdf/p13.pdf (a ccessed February 3, 2016). U.S. Bureau of Justice Statistics. 2014. Recidivism of prisoners released in 30 s tates in 2005: Patterns from 2005 to 2010 by Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder. Special Report NCJ 244205, Bureau of Justice Statistics. http://www.bjs.gov/content/pub/ pdf/rprts05p0510.pdf (accessed February 3, 2016). U.S. Department of Health and Human Services. Administration for Children and Families. Administration on Children, Youth and Families, Children's Bureau. Child Welfare Information Gateway. 2011. Criminal background checks for prospective foster and adoptive parents. www.childwelfare.gov/pubPDFs/background.pdf (a ccessed February 15, 2016).

PAGE 133

125 U.S. Department of Justice. Office of Justice Progr ams. Office of Juvenile Justice and Delinquency Prevention. 1998. Guidelines for the s creenin g of persons working with children, the elderly, and i ndividuals with d isabilities in n eed of s upport www .ncjrs.gov/pdffiles/167248.pdf ( a ccessed February 21, 2016). U.S. Department of Labor. Office of Job Corps. 2015. Policy and requirements h andbook http://www.jobcorps.gov/pdf/prh.pdf ( a ccessed October 21, 2015). U.S. Equal Employment Opportunity Commission. 2012. EEOC enforcement guidance on the consideration of arrest and conviction records in employment decisions u nder Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ¤ 2000e et seq. http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm ( accessed February 16, 2016). U.S. Office of the Pardon Attorney. 1996. Civil d isabilities of convicted felons: A state by state s urvey http://hdl.handle.net/2027/pur1.32754067535504 (accessed November 26, 2014). U.S. Office of the Pardon Attorney. 2006. Federal statutes imposing collateral consequences upon c onviction www.justice.gov/sites/default/files/pardon/legacy/2006/11/13/collateral_consequences.pd f ( accessed March 2, 2016).

PAGE 134

126 SUPREME COURT CASES REFER ENCED Baker v. Pataki 85 F.3d 919 (2d Cir. 1996). Ball v. United States 163 U.S. 662 (1986). Chaidez v. United States 133 S. Ct. 1103 (2013). Chong v. District Director. I.N.S. 264 F.3d 378 (3d Cir. 2001). City of Cleburne v. Cleburne Living Center 473 U.S. 432 (1985). Com. v. Frometa 520 Pa. 552, 555 A. 2d 92 (Pennsylvania 1989). Contreras v. Schiltgen 122 F.3d 30 31 32 (9th Cir.1997). Contreras v. Schiltgen 151 F.3d 906 (9th Cir. App. 1998). Cuthrell v. Director, Patuxent Instiution 475 F.2d 1364 (1973). Department of Housing and Urban Development v. Rucker 535 U.S. 125 (2002). Enmund v. Florida 458 U.S. 782 (1982). Farrakhan v. Locke 987 F.Supp. 1304 (E.D. Wash. 1997). Frontiero v. Richardson 411 U.S. 677 (1973). Harmelin v. Michigan 501 U.S. 957 (1991). The Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241 (1964). Johnson v. Robison 415 U.S. 361 (1974). Johnson v. United States 291 A.2d 697 (1972). Kansas v. Hendricks 521 U.S. 346 (1997). Kennedy v. Louisiana 554 U.S. 407 (2008). Korematsu v. The United States 323 U.S. 214 (1944). Lane v. Williams 455 U.S. 624 (1982). Major v. State 814 So. 2d 424 (Fla. 2002).

PAGE 135

127 Meaton v. United States 328 F.2d 379 (5th Cir. 1964). Michel v. United States 507 F.2d 461 (2d Cir. 1974). Moore v. Hinton 513 F.2d 781 (5th Cir. 1975). Mott v. State 407 N.W.2d 581 (Iowa 1987). Padilla v. Kentucky 130 S. Ct. 1473 (2010). People v. Adams 163 A.D.2d 881 (N.Y. App. Div. 1990). People v. Ford 211 A.D.2d 438 (N.Y. App. Div. 1995). Plyler v. Doe 457 U.S. 202 (1982). Redwine v. Zuckert 317 F.2d 336 (D.C. Cir. 1963). Richardson v. Ramirez 418 U.S. 24 (1974). Robinson v. California 370 U.S. 660 (1962). Rummel v. Estelle 445 U.S. 263 (1980). Russell v. Gregoire 124 F.3d 1079 (9th Cir. 1997). San Antonio v. Rodriguez 411 U.S. 1 (1973). Sanchez v. United States 572 F.2d 210 (1977). Small v. United States 544 U.S. 385 (2005). Smith v. Doe 538 U.S. 84 (2003). Solem v. Helm 463 U.S. 277 (1983). State v. Ginebra 511 So. 2d 960 (Florida 1987). State v. Heitzman 107 N.J. 603 (New Jersey 1987). State v. Santos 136 Wis. 2d 528 (Wisconsin 1987). Texas Supporters of Workers World Party Presidential Candidates v. Strake 511 F.Supp. 149 (S.D. Tex. 1981). Tison v. Arizona 481 U.S. 137 (1987).

PAGE 136

128 Trop v. Dulles 356 U.S. 86 (1958). Trujillo v. United States 377 F.2d 266 (5th Cir. 1967). United States v. Banda 1 F.3d 354 (5th Cir. 1993). United States v. Bean 537 U.S. 71 (2002). United States v. Brown 381 U.S. 437 (1965). United States v. Campbell 778 F.2d 764 (1985). United States v. Carolene Products 304 U.S. 144 (1938). United States v. Del Rosario 902 F. 2d 55 (Ct. of App., Dist. of Col. Cir. 1990). United States v. Gavilan 761 F.2d 226 (5th Cir. 1985). United States v. Green 995 f.2d 793 (8 th Cir. 1993). United States v. Hefner 843 F.2d 731, 732 (4th Cir. 1988). United States v. Hefner 488 U.S. 868 (1988). United States v. King 169 F.3d 1035 (4th Cir. 1997). United States v. Mercurris 192 F.3d 290 (1999). United States v. Mitchell 531 U.S. 849 (2000). United States v. Parrino 212 F.2d 919 (2d Cir. 1954). United States v. Probber 170 F.3d 345, 347 49 (2d Cir. 1999). United States v. Russell. 686 F. 2d 35 (Dist. of Col. Cir. Ct. App. 1982). United States v. Sambro 454 F.2d 918 (D.C. Cir. 1971). United States v. Shoemaker 2 F.3d 53 (4 th Cir. 1993). United States v. Yearwood 863 F.2d 6 (4th Cir. 1988). Varela v. Kaiser 976 F.2d 1357 (10th Cir. 1992). Wadley v. Davis 445 F.2d 1, 3 (5th Cir. 1971 ).

PAGE 137

129 Weber v. Aetna Casualty & Surety Co 406 U.S. 164 (1972). Wesley v. Collins 791 F.2d 1255 (6 th Cir. 1986). Williamson v. Gregoire 151 F.3d 1180 (9th Cir. 1998). Zukas v. Hinston 124 F.3d 1407 (11 th Cir. 1997).