Conviction: Civil Disabilities

Public rights. Apparently on the premise that violation of the criminal law indicates a general lack of respect for law and for the obligations of citizenship, most states, as well as the federal government, have barred former offenders from participating in a number of public activities normally open to citizens—some of which indeed are considered obligations of citizenship.

The right to citizenship. No right is more basic or all-encompassing than citizenship itself. In a number of decisions, the U.S. Supreme Court has either directly invalidated or cast substantial doubt upon attempts by Congress to revoke naturalized citizenship for such crimes as desertion in time of war or residing for three years in a foreign country of birth (Trop v. Dulles, 356 U.S. 86 (1958); Schneider v. Rusk, 377 U.S. 163 (1964)).

The right to vote. Next to citizenship itself, the right to vote is probably the single most important political right held by a citizen. Yet fourteen states now provide for the permanent disenfranchisement of convicted felons, while most others allow restoration of the right. (On the other hand, some states provide prisoners with absentee ballots, thus encouraging them to remain politically aware.) Many of these provisions are found in state constitutions rather than in statutes, reflecting a deeply and widely held belief that the right to participate in democracy's most basic exercise is forfeited by criminal action. In 1974 the Supreme Court upheld such a provision in the California constitution, relying on a provision of the Fourteenth Amendment to the U.S. Constitution that was interpreted to allow such disenfranchisement (Richardson v. Ramirez, 418 U.S. 24 (1974)).

The right to hold public office. Twenty-five states have constitutional or statutory provisions disqualifying persons convicted of certain crimes from holding or retaining public office. These disabilities sometimes extend beyond the term of sentence of the crime, and generally apply to local as well as state public offices, and to appointive as well as elective positions. Court decisions have held, for example, that the term public office includes the positions of city manager, postmaster, school board member, county treasurer, and justice of the peace. Congress has similarly enacted legislation providing that persons convicted of certain offenses cannot hold federal office (for example, 18 U.S.C. §§ 593, 1901, 2071). Yet nothing in the U.S. Constitution prohibits such persons from being elected to Congress itself or, for that matter, from being elected president. Whether or not one agrees with the disqualification of former offenders from holding appointive office, barring them from elective public office seems particularly hard to defend. Theoretically, the electorate should be able to assess for itself the offense's bearing on the candidate's ability to perform the job.

Judicial rights. Various provisions affect what might be called judicial rights. Some state laws provide that a person convicted of or imprisoned for certain offenses cannot litigate in the state's courts for the period of disability, often the term of imprisonment. In most instances these statutes allow the prisoner to bring his suit after the disability is lifted. However, this is far from a perfect remedy, since the passage of time may affect the memories or availability of witnesses, or result in other difficulties that the litigant would encounter on release. Moreover, it still leaves the offender, while encumbered with the disability, without the right to appear in court and to represent his own interests. Some state statutes make provision for the appointment of a substitute or counsel for the prisoner, but impediments to receiving the full protection of the courts and the legal system still remain substantial.

A second judicial right clouded by a criminal conviction is the right to testify in court. Most states do not automatically disqualify offenders from appearing as witnesses, unless the conviction was for perjury; these statutes are all that remains of the common law doctrine that persons convicted of serious crimes were incompetent to testify. However, in virtually every state, a previously convicted witness may be questioned about his past record. This rule has the valid purpose of informing the jury about facts that may be relevant to the witness' credibility, but discourages witnesses—and particularly persons charged with new crimes—from testifying in court. Some states, as well as the federal courts, have restricted the use of such "impeachment" evidence to recent convictions, on the ground that older convictions are no longer sufficiently relevant.

A third judicial right sometimes rescinded is the right to perform fiduciary duties. A criminal conviction may prevent the offender from holding a court-appointed position of trust, from serving as the executor of a will or administrator of an estate, or from being a guardian of a person or estate. For example, a testamentary guardian named in a will by the parents of a minor or of an incompetent person must be approved by the court. A few jurisdictions disqualify any nominee who has been convicted of a felony or infamous crime.

By far the most symbolic disqualification from judicial rights is the barrier to serving on a jury. Although only a handful of states automatically prohibit such service for all convicted felons, approximately thirty states expressly exclude permanently from jury service persons who have been convicted of certain crimes. Such an automatic disqualification might be rational when applied to perjury, but less persuasive when applied to assault. Furthermore, where a state statute provides that a juror must have "good character," evidence of a conviction may be sufficient to result in disqualification. A requirement that a juror be a qualified elector will, of course, result in incapacity to be a juror in those states that disfranchise felons. As with the issue of holding public office, the concern that motivates this disqualification is clear, but as with that concern, there is a less drastic approach—disclosure of the potential juror's criminal record should be sufficient to protect the interests of the parties.

Registration. Pursuant to what amounts to a federal mandate, virtually all states now require persons convicted of sexual offenses (variously defined) to register their addresses with police after they have been released from prison. Many of these states also provide for dissemination of this information to the community, in an apparent attempt to prevent future sexual offenses, primarily, but not solely, against children. Moreover, a majority of states now require such registration (but not community notification) of all convicted felons.