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Conviction: Civil Disabilities - Analysis And Future Of Civil Disabilities

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Imposition of collateral civil disabilities on those convicted of crime raises perplexing problems of both policy and law. The major problem encountered in analyzing civil disabilities is the existence of competing views concerning their purpose. If the primary purpose of the criminal justice system is to rehabilitate the offender, no civil disabilities should be imposed on him, at least after incarceration, since this will only jeopardize his reintegration into the community. Critics of civil disability laws and practices point out with particular anguish that it is often government itself, although allegedly seeking the rehabilitation of offenders, that refuses to hire exoffenders, erects legal barriers to their acceptance by the community, and allows private employers and others to indulge their fears about them. These critics urge complete restoration of rights immediately upon release, as well as strict prohibition against any search for information about a person's past criminal record.

At the other extreme is the view that civil disabilities are merely additional components of the offender's sentence and punishment, and are implicit in the verdict, which is surrounded by procedural and substantive protections. Even if this view were accepted, however (and note the number of instances, cited above, in which the courts have held that these disabilities are not punitive), imposing the same disabilities—in some cases lifetime ones—on all offenders regardless of the seriousness of their crimes seems to violate the cardinal principle of proportionality.

On the other hand, non-offenders surely have the right to inquire about an offender's past record in order to avoid becoming victims of his possible future crimes. Employers have a particular concern since some courts, either on an absolute basis or on the basis that the employer did not sufficiently investigate the ex-felon's character, have held liable employers who have hired ex-felons who have then committed crimes against customers. Arguably, then, potential future victims should have the right to exclude the offender from situations in which they would be particularly vulnerable, or at least the right to know about the past conviction so that they can decide whether to take a risk such as that of employing him. Thus, even if only one out of every thousand former embezzlers might embezzle again, it seems at first blush questionable to prohibit a prospective employer from learning of an applicant's past background, including his past convictions, and from acting on that information. Prohibiting such an inquiry, however, could be supported on the utilitarian grounds that the fear of recidivism is greatly exaggerated and cannot outweigh the benefits that employment would bring to ex-offenders; and that on retributivist grounds, the offender has "paid the price" of his crime and should be allowed to reenter society without continuing impediments and burdens.

Balancing the rights of the ex-offender against the rights of others is no easy task. Where the conflict concerns such potential victims as the state, and the issue is the right to vote or to serve as a juror, perhaps the balance should be weighted differently than where the potential conflict is between the right of one individual—the exoffender—and that of another individual—the potential employer or crime victim.

As indicated earlier, civil disabilities have been imposed on offenders for over two millennia. This well-established practice is unlikely to cease anytime in the foreseeable future. The good news, however, is that while, in the past fifteen years, there has been an explosion in the number of states requiring registration by exoffenders, there was a only a minimal escalation in the imposition of other consequences. Since there was otherwise a marked increase in the length and intensity of criminal punishment generally, it may be that we have reached the apogee of the movement.

Numerous reforms have been suggested for dealing with these problems. The Model Penal Code (§ 306.6) provides for automatic restoration of all civil rights to any successful probationer or parolee, as well as to all persons who have completed their incarceration and have not committed a crime for two years; yet it does allow licensing boards to deny licenses when there is a prior criminal record. The National Advisory Commission on Criminal Justice Standards and Goals recommends automatic restoration of civil rights upon completion of sentence, and would require a licensing board to show a "direct relationship between the offense committed or the characteristics of the offenders and the license or privilege being sought" before denying a license. Similar standards adopted by the American Bar Association and the National Conference of Commissioners on Uniform State Laws extend the requirement to private employers as well. The National Council on Crime and Delinquency goes further, calling for automatic restoration of rights by a court on completion of parole, probation, or incarceration, and allowing licensing boards (and possibly private employers) to inquire only whether the applicant has ever been arrested for or convicted of a crime "which has not been annulled by a court."

Civil disability statutes are vague and uncertain of application, and would seemingly provide fertile grounds for legal challenges in terms of both due process and equal protection. If change is to occur, however, it seems unlikely to come from the courts. A few sporadic judicial decisions have invalidated state actions, but the imposition of civil disabilities is within the province of the legislature, and except in extreme cases it does not violate the offender's constitutional rights. Moreover, as noted above, most courts find these provisions nonpunitive in purpose, thereby granting states wide discretion as to how to deal with such disabilities.

In effecting change, legislatures will have to confront the philosophic and policy dilemmas posed by civil disabilities laws, as well as the practices of private employers and others who seek information about a person's criminal background. The predicament of former offenders is unquestionably real, but public concern about their future behavior is equally real. This is the problem that will confront the legislatures in the future.

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almost 9 years ago

I am a professional speaker living in Rochester, NY. My 20 year old son Erik is currently serving two years in a Louisiana prison for negligent homicide. When he was seventeen he was in an accident involving alcohol that his best friends 53 year old uncle bought for them. (Caught on video at the store) Erik's best friend Michael was killed in the accident. The family pushed for vehicular homicide (Michael's father is a doctor)After two years of hell Erik was forced to take a plea and received five years, three suspended and two years served at hard labor. He will be a felon when he gets out. There is nothing out there to help him. This is a smart kid who wants to go back to school. We are still going through the civil suit which the parents have blamed and come after me. I had a heart transplant 11 years ago and was widowed at the same time. Go to my website www.gingersheart.com The system is crazy, especially in Louisiana. Michael's uncle was arrested by the Drug and Tobacco Control but the DA dropped the charges against him. You can't imagine how horrible this has been. I feel deeply for their loss but Michael was eighteen and he instructed my 17 year old to drive to where his uncle was and he had his uncle go in and buy the alcohol. He asked him to buy them a pint, he came out with a 1/2 gallon and told them the rest was on him. Erik has suffered, after the wreck he became addicted to the pain medicine, he was arrested again. This was all they needed to force him to plea to what they wanted. I placed my son in rehab for three months and brought him up here to Rochester, NY and had him under the care of a psychiatrist for six months. He was doing so much better. None of that mattered to them. The family is still bent on revenge like my son murdered his best friend. It's so sad.
I worry now what Erik will face when he gets out. He is stressed about it and I tell him we will deal with it one day at a time. I have been looking online and there seems to just be nothing. Then I just heard the deal Dontel Stallworth has bought. Yes, it does come down to money doesn't it.
That's what this family is all about, they found out that I have an umbrella policy, they came straight after me.

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about 10 years ago

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