Undermining individual and collective citizenship: the impact of exclusion laws on the African-American community.

• Author: Mitchell, S. David

1. Introduction II. Conceptualizing Citizenship A. The Process of Citizenship B. The Practice of Citizenship C. The Parts of Citizenship III. Impact of Felon Exclusion Laws A. The Exclusion Laws i. Denying the Vote ii. Barred from Serving in a Representative Capacity iii. Striking Potential Jurors iv. Public and Private Employment and Occupational Licensing Restrictions B. Impact of the Exclusions on the Individual C. Impact on the African-American Community i. Silencing the Collective Voice and Diminishing Representative Choice ii. A Priori Jury Pool Bias iii. No Employment, No Capital--Social or Financial IV. "Sweet Home Alabama," But Not for Ex-Felons V. Automatic Restoration of Rights for Ex-Felons A. Exclusion Laws Violate the Fourteenth Amendment B. Legislative Action Needed for Automatic Restoration of Ex-Felon's Rights VI. Conclusion The most heartrending deprivation o fall is the inequality of status that excludes people from full membership in the community, degrading them by labeling them as outsiders, denying them their very selves. (1)

1. INTRODUCTION

   Felon exclusion laws (2) are jurisdiction-specific, post-conviction statutory restrictions that prohibit convicted felons from exercising a host of legal rights, most notably the right to vote. (3) The professed intent of these laws is to punish convicted felons equally without regard for the demographic characteristics of each individual, including race, class, or gender. (4) Felon exclusion laws, however, have a disproportionate impact on African-American males and, by extension, on the residential communities from which many convicted felons come. Thus, felon exclusion laws not only relegate African-American convicted felons to a position of second-class citizenship, but the laws also diminish the collective citizenship (5) of many African-American communities.

   Upon conviction of a felony, generally defined as "a serious crime ... punishable by imprisonment for more than one year or death," (6) the individual becomes a member of the convicted felon status group. While all persons convicted of a felony are members of this status group, (7) not all convicted felons have the same relationship to the criminal justice system, thus I have created the following typology to characterize those relationships. The convicted felon status group can be divided into the following two categories--felons and ex-felons--where the status of the former is predicated on some type of control and the latter is not. Specifically, felons have not satisfied the requirements associated with their sentences and thus remain under the auspices of the criminal justice system. The felon category can be further divided into those persons that are incarcerated, (8) on probation, (9) or on parole. (10) By contrast, ex-felons have completed their entire sentences, and are no longer under the direction and control of the criminal justice system.

   Membership in the convicted felon status group comes with many disabilities, not least of which is the infringement upon the right to vote. A felony conviction, however, can also be used to deny additional rights or serve as a basis to terminate existing relationships, (11) For example, depending upon the jurisdiction, a convicted felon can be prohibited from serving on a jury, obtaining public employment, holding public office, or owning a firearm, (12) Moreover, a felony conviction can be cited as a reason to terminate a convicted felon's marriage or parental rights, and can require a convicted felon to register with local law enforcement officials. (13) Felon exclusion laws undermine a convicted felon's full citizenship. Within the convicted felon status group, ex-felons possess the strongest legal and moral claim for having their rights restored automatically upon the completion of their sentences. (14)

   Felon exclusion laws have a long and complex history in American jurisprudence. (15) Consequently, scholars disagree as to whether such laws were passed following Reconstruction to purposefully deny the vote to the newly freed African-Americans, or were continuing a longstanding practice of disenfranchisement, political or otherwise. (16) While the contention that felon exclusion laws did not have a racial basis is in part valid, there is ample evidence to the contrary demonstrating that laws were designed specifically to diminish the power of the African-American community, either by limiting its members' right to vote, (17) thereby making African-Americans voiceless, or by increasing the obstacles to reentry following a conviction and possibly incarceration. (18) For instance, some jurisdictions changed the status of many offenses to felonies so that felon exclusion laws were broad and vague enough to allow newly freed African-Americans to be convicted of a felony. (19) In doing so, African-Americans were denied the opportunity to be full citizens. In many jurisdictions, the right to vote was restricted or outright denied more often than any other right because it served not only as a symbol of membership, and thus a marker of full citizenship, but also because it provided African-Americans with the means to effectuate legal and social change and thus acquire additional rights. (20) While this Article agrees that the right to vote is both symbolically and practically important, it contends that whenever a citizen is denied any right that is guaranteed to all other members of society, the citizen from whom that right is withheld is denied full citizenship.

   The purpose of this Article is to demonstrate that felon exclusion laws are not race neutral and that the application of the laws has a racially discriminatory effect, and to call for their abolition. The laws contribute to the erosion of citizenship rights for the individual African-American ex-felon, and the undermining of the collective citizenship rights of the larger African-American community. Part II discusses the conceptualization of citizenship that underscores the premise of the Article. Part III discusses the exclusions that ex-felons encounter and the resulting impact on the individual and the community. Using Alabama as a case study, Part IV presents the operation of felon exclusion laws in a specific jurisdiction. Finally, Part V proposes that felon exclusion laws should be abolished because they deny full citizenship to the individual ex-felon and undermine the collective citizenship of the ex-felons' residential communities.

2. CONCEPTUALIZING CITIZENSHIP

   Citizenship is defined as the status of being a citizen, (21) where the citizen has become a member of a particular political community through a delineated process, owes allegiance to that community, and in return is afforded certain rights and privileges, (22) This literal definition fails to capture fully the complexity inherent in the concept itself.

   Citizenship as a concept has a variety of meanings. (23) It is used to discuss the procedural requirements of how an individual becomes a citizen of a polity, i.e. the process of citizenship. It also refers to what is expected of an individual upon becoming a citizen, i.e. the practice of citizenship. Yet, citizenship is far too complex a concept to be reduced to either the "status of being a citizen" (24) or the practices in which a citizen engages. Rather than engage in a protracted discussion of the many facets of citizenship, which would be beyond the scope of the Article, I will briefly discuss the process, the practice, and the parts of citizenship, infra, and the latter will serve as the framework for the analysis of how felon exclusion laws undermine not only the individual citizenship of African-American ex-felons, but also the collective citizenship of the communities of which these ex-felons are members. (25)

   A. The Process of Citizenship

   In the United States, an individual is endowed with the status of citizen through two processes--by birth (26) or by naturalization. (27) Citizenship endowed by birth is manifested under two distinct but related doctrines--jus sanguinis (28) and jus soli. (29) Under the former, "[i]f you were born outside of the United States, you are still considered a citizen at birth if at least one of your parents was a [United States] citizen when you were born." (30) Under the latter doctrine, "[i]f you were born in the United States, including Puerto Rico, Guam, and the Virgin Islands, you are a citizen at birth...." (31) Regardless of the doctrine under which the status is obtained, the individual is granted citizenship not because of an affirmative choice or decision, but solely through the accident of birth. Under this formulation, citizenship is a passive process whose status is bestowed upon the individual as a result of biological identity. By contrast, citizenship obtained through naturalization is an affirmative, proactive process whereby the person seeking to become a citizen must not only satisfy specific statutory requirements before being endowed with the full set of rights attendant to that status, but the individual is also required to perform certain duties as well. (32)

   While the doctrines identify two distinct paths to citizenship, the practical result remains the same--legal recognition on the part of the polity that an individual has satisfied the requisite qualifications of membership. Conceived in this manner, citizenship can be viewed simply as a process, passive for some and active for others. Yet, anyone who satisfies the statutory criteria will be recognized as an official member of the polity entitled to the same rights and privileges (33) enjoyed by the other members of the polity. Citizenship as a process, therefore, is a reductionist view whereby the satisfaction of statutorily proscribed criteria endows a person with the legal status of citizenship. This conceptualization of citizenship as a process fails to account adequately for the nuances inherent in the concept of citizenship. While...