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Conviction: Civil Disabilities - Private Rights

convicted criminal employment licensed

Family and personal rights. Conviction of a crime may jeopardize the offender's relationship to her family in several ways. Incarceration, of course, severely hampers this relationship. But beyond this, in many states conviction alone, or conviction and imprisonment, may provide the impetus to legal dissolution of family ties. A convict subject to civil death may be forbidden to marry; many others, either while incarcerated or on conditional liberty, may find their right to marry subject to the scrutiny and approval of a warden, or a probation or parole officer. More commonly (twenty-nine states), a conviction may be declared grounds for divorce; in some states, a divorce will be automatically granted if the convicted spouse is actually incarcerated, or when civil death is incurred.

Nineteen states provide statutorily that conviction or imprisonment may result in the forfeiture of parental rights. Even in those states not so providing, imprisonment may serve as a basis for a finding of abandonment; in dependency and neglect proceedings a parent's criminality may be grounds for terminating parental rights. In virtually every state, a conviction is evidence of unfitness in a custody proceeding. Further, some states rule that a person's imprisonment renders unnecessary his consent to the adoption of his children by others, although most provide such a draconian penalty only in the event of lengthy incarceration.

At common law, the convicted felon generally possessed the right to inherit. The aversion of the colonists to bills of attainder generally ensured that this right would continue. But in the twentieth century many jurisdictions have legislated an exception, providing that a felonious slayer cannot inherit from his victim. This new doctrine has been universally upheld as constitutional.

Government benefits. A criminal conviction may also prevent the offender from participating in insurance, pension, workers' compensation, or other public benefit programs. The federal government, for example, disqualifies some felons from public housing. Similarly, a number of states have enacted statutes that directly prohibit convicted criminals from benefiting from pension funds in some instances. Finally, a criminal conviction adversely affects the offender's right to receive worker's compensation benefits; in most states, convicts are not entitled to such benefits for injuries sustained while they are incarcerated, even during the course of work at prison jobs.

Employment. Certainly the most pervasive private right disqualification is the exclusion, by statute or by administrative decision, of the convicted felon from specific types of employment. Because it significantly reduces the convicted offender's ability to reenter society as a working citizen, this exclusion is thought by many either to restrict offenders to menial jobs, or to impel them to return to crime.

Certain crimes disqualify offenders from holding a job with the federal government. More importantly, government and private employers alike may generally refuse to hire any applicant who has been convicted. For example, the civil service provides that "criminal, infamous, dishonest, immoral or notoriously disgraceful" conduct may be grounds for dismissal or for refusal to hire an applicant (see 5 C.F.R. 302. 303(a)(2)).

State and municipal governments as well may bar convicted persons from official positions. Nearly half the states bar some convicted persons from certain official jobs, but only six deny public employment permanently; the typical pattern is one of discretionary judgment rather than statutory exclusion. At the other extreme lie municipalities and states that hire exoffenders as police or, more typically, as correctional or parole officers. The latter help rehabilitate other ex-offenders and at the same time demonstrate to sentenced offenders that the state is concerned about their future employment.

Other provisions deal with the licensing of convicted persons for work at certain jobs. Thus, convicted lawyers, doctors, or others automatically lose their licenses in some states, and are subject to loss of license in all. The courts have seen such statutes as nonpunitive, and upheld them without much dissent. In the nineteenth and early twentieth centuries, when only "professions" were licensed by the state, the barring of convicted persons from such employment, although onerous, was not catastrophic. Today, however, the situation has changed dramatically. In one state, for example, brokers, dry cleaners, cosmetologists, embalmers, and trainers of guide dogs for the blind must be licensed. Another state licenses (among others) minnow dealers. In all, nearly six thousand occupations are licensed in one or more states; the convicted offender may find the presumption of ineligibility against him either difficult or impossible to overcome, even though there is no apparent link between his offense and the skills needed for the job, or any character trait supposedly required by the occupation.

Access to licensed employment is usually determined by licensing boards, which are generally composed of persons engaged in the given occupation. Concerned with upholding the public image of their trade, many such board members tend to react adversely to any convicted applicant, even if the crime committed bears no relation to the trade in question. Furthermore, some of the most frequently licensed occupations are those taught in prison vocational rehabilitation programs. Thus, the released prisoner may find himself blocked from plying the very skills he was taught during incarceration, thereby frustrating both the prisoner and the correctional authorities.

Some courts have restricted the discretion of boards to deny licenses automatically on the basis of a criminal record, requiring that the board consider the circumstances of the criminal conviction and the extent of rehabilitation, the relation (if any) of the crime to the duties of the job, and the person's character at the time he applies. On the whole, however, courts have been extremely reluctant to interfere with the discretion of licensing boards, even when that discretion has thwarted rehabilitative goals both in and out of prison. In most states, therefore, ex-offenders remain barred from many licensed occupations.

Private employers, like their government counterparts, frequently simply refuse to hire exconvicts. They usually fear that the ex-criminal will recidivate; neither clear indications that he has been rehabilitated nor the fact that the crime was unrelated to the job sought can erase that fear or the taint he allegedly retains. Although federal (and some state) statutes may prohibit discrimination in hiring on the basis of such factors as sex and race, a past criminal record is not among these factors.

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