Unequal protection: comparing former felons' challenges to disenfranchisement and employment discrimination.

AuthorSaxonhouse, Elena

INTRODUCTION I. DISENFRANCHISEMENT OF EX-FELONS A. Societal Impacts B. Laws Restricting the Voting Rights of Ex-Felons 1. State laws excluding ex-felons from the suffrage 2. Restoration of voting rights C. Scholarly and Public Attention to Civil Disabilities II. EMPLOYMENT DISCRIMINATION AGAINST EX-FELONS A. Societal Impacts B. Laws Restricting Employment of Ex-Felons 1. Bans on public employment 2. Regulations on private employment III. EQUAL PROTECTION CHALLENGES TO EMPLOYMENT RESTRICTIONS A. Rational Basis Review B. Employment Discrimination Cases 1. Unsuccessful challenges to employment restrictions 2. Successful challenges to employment restrictions 3. Summary of equal protection challenges to employment restrictions IV. EQUAL PROTECTION CHALLENGES TO VOTING RESTRICTIONS A. Equal Protection After Richardson v. Ramirez B. Rationality Review of Ex-Felon Disenfranchisement: Lessons from the Employment Cases C. Is the Discrepancy Justified? V. LEGISLATIVE REFORM CONCLUSION INTRODUCTION

Rule 11 of the Federal Rules of Criminal Procedure requires that before accepting a guilty plea, courts must inform the defendant of "any maximum penalty ... any mandatory minimum penalty ... [and] any applicable forfeiture." (1) But even if Rule 11 is followed to the letter, and even if the sentence resulting from a guilty plea does not include prison, a felony conviction will change the rights of the felon to an extent that neither he, his lawyer, nor even the judge is likely to be aware of at the time of conviction. (2) Collateral consequences of criminal sentences, or "civil disabilities" as they are often termed, are scattered far and wide throughout federal, state, and municipal codes. (3) Depending on the jurisdiction and the crime, felons who have served their sentences and are no longer under any sort of state supervision may nevertheless be unable to vote, obtain certain types of employment, receive food stamps, qualify for student loans, maintain parental custody, or even pick up their children from school. (4) Noncitizens will be deported. (5) In many cases, blanket provisions (6) mean that nonviolent, first-time offenders are subject to the same restrictions as hardened criminals. Furthermore, although the term "felony" commonly refers to serious crimes punishable by imprisonment for at least a year, or by death, it may include seemingly minor crimes. In Maryland, injuring a racehorse, issuing a verbal threat, and possessing fireworks without a license are felonies. (7) Despite efforts to justify exclusionary laws in terms of public safety, (8) a number of commentators have pointed out that such policies are in fact more likely to lead to increased recidivism. (9)

This Note discusses and compares equal protection-based challenges to two types of civil disabilities facing many ex-felons: (10) loss of voting rights and state-made obstacles to employment. (11) Although the United States is sometimes criticized by other western democracies for paying too much attention to political rights at the expense of economic rights, (12) ex-felons (perhaps alone) fare much better in the economic realm when it comes to challenges under the Equal Protection Clause of the Fourteenth Amendment. This is true despite the more intuitive rationale for employment discrimination against ex-felons (employers understandably want to hire employees of proven trustworthiness who respect rules), than for barring them from the ballot box (tests of voter competence and exclusion on the basis of how a voter will cast her ballot have been explicitly decried by Congress (13) and the Supreme Court (14)) and despite recognition of voting as a "fundamental right." (15)

The discrepancy in courts' treatment of these two classes of cases stems primarily from the 1974 Supreme Court case Richardson v. Ramirez. (16) In Richardson, a majority of the Court read Section 2 of the Fourteenth Amendment, which contemplates disenfranchisement for "rebellion or other crime," to affirmatively sanction the practice. (17) The Court held that heightened scrutiny, which normally applies to restrictions on the vote, did not apply to criminal disenfranchisement. Since then, lower courts have almost uniformly upheld the constitutionality of state disenfranchisement laws without much more discussion than a citation to Richardson.

Although Richardson did not in fact demand this result, (180 the case has created a rift not only between equal protection principles applied to classifications of former criminal offenders and those applied to other adult voters--as observers have often noted (19)--but also between the principles applied to voting exclusions and those applied to other types of exclusions of former criminal offenders. This Note argues that the judiciary's ongoing assumption that denial of voting rights to ex-felons comports with equal protection is at odds with courts' careful attention to the rationality of employment disqualifications and their apparent commitment to a rehabilitative ideal. (20) To date, neither courts, civil rights advocates, nor scholars have recognized the usefulness of the employment cases as a model for what equal protection analysis of other disabilities, such as disenfranchisement, should look like.

The Note is structured as follows: Part I describes the scope of ex-felon voting restrictions in the United States and their impact on both the individual ex-felon and society as a whole. It also notes the vigorous movement against felon disenfranchisement in the legal community as compared to the relative apathy among national legal organizations towards the problem of employment discrimination against former criminal offenders. The inattention to equal protection-based employment discrimination claims has meant that voting rights advocates have not taken the opportunity to incorporate useful concepts and favorable judicial holdings from the employment field into their own reform strategies. Given courts' receptiveness to employment claims, and the strong link between employment and rehabilitation, this inattention also suggests an opportunity for advancing the causes of both equality and public safety that, so far, very few legal organizations have actively pursued. While this Note discusses the employment cases primarily to demonstrate courts' flawed analysis of voting rights claims, the cases also deserve attention as grounds for independent attacks on overbroad employment exclusions.

Part II describes the employment discrimination problem, and Part III analyzes the results of former criminal offenders' equal protection challenges to employment restrictions. The cases discussed in Part III provide a model for how courts should approach equal protection challenges to disenfranchisement. In these cases, courts ask whether the restriction on former offenders is rationally related to a legitimate purpose and usually demand that the restriction be tailored to exclude only those offenders who might present a threat to public safety in a particular occupation.

Using these standards, numerous courts have been willing to invalidate overly sweeping ex-felon employment disqualifications. On the other hand, courts tend to summarily reject challenges to similarly sweeping disenfranchisement laws. Part IV discusses this discrepancy and argues that the rift cannot be justified by the holding in Richardson or other possible distinctions. Even after Richardson, courts can correctly decide that disenfranchisement laws, like other overinclusive disabilities, do not have a rational basis.

Part V points out that the political powerlessness and unpopularity of ex-felons as a class make judicial attention to the civil rights consequences of felonies especially important. The Conclusion considers the policy arguments for greater receptiveness to employment claims and highlights the connections between the two collateral consequences at issue.


    1. Societal Impacts

      Felons make up the largest group of Americans who are barred by law from participating in elections. (21) A 1998 report by Human Rights Watch and The Sentencing Project found that the number of those affected by state disenfranchisement laws totaled about 3.9 million (or 1 in 50 adults), 1.4 million of whom were neither prisoners, parolees, nor probationers. (22) No other democracy disenfranchises offenders who have completed their sentences. (23) Many commentators are especially disturbed by these numbers given the disproportionate representation of minorities in the ex-felon population. (24) For instance, in seven states that deny the vote to ex-felons, it is estimated that one in four black men is permanently disenfranchised. (25)

      The political impact of ex-felon voting restrictions was keenly apparent in the 2000 presidential election. At least one empirical study suggests the election would easily have gone to Al Gore had ex-felons been permitted to vote in Florida, even accounting for likely low voter turnout and conservative assumptions as to voter preference. (26) The same study found that ex-felon disenfranchisement has played a decisive role in United States Senate elections, helping to establish the Republican Senate majority throughout the 1990s. (27) (The political consequences of ex-felon disenfranchisement are thus of most concern to Democrats.)

      In addition to its effects on group political power, some argue that loss of voting rights is detrimental to the individual ex-felon and, in turn, to public safety. The majority in Richardson thought it might be "essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen." (28) One ex-felon, now Executive Director of a program that helps other ex-offenders successfully reenter their communities, agrees: "[F]or former criminals to construct new lives," he says, "it's essential that they feel part of the citizenry, with its...

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