Chapter 14

1. Chapter 14 Collateral Consequences of Felony Convictions & Restoration of Rights

2. Introduction • Conviction of a crime carries direct & collateral (indirect) consequences • Direct consequences are penalties such as a fine, probation & commitment to jail or prison • Collateral consequences that include both civil & political disqualifications or deprivations

3. Civil and Political Rights • Civil rights are individual rights of personal liberty guaranteed by the Bill of Rights & the 13th, 14th, 15th, & 19th Amendments & by certain legislation • Civil rights are enjoyed by all persons within the borders of a country, citizens, aliens, legal residents, & undocumented immigrants • Political rights are rights of citizens which give them the power to participate in government, such as the right to vote or hold public office

4. Background of Civil Rights • Civil disabilities as a consequence of crime date back to ancient Greece. • Infamy led to the term infamous crimes • Outlawry considered a person outside the protection of the law • Attainder was the extinction of civil rights • Outlawry & bills of attainder are not allowed in the U.S. • Collateral consequences flow from the assumption that convicted offenders lack good moral character &, therefore, lack the requirement to exercise most political rights • Crimes involving moral turpitude: conduct that is contrary to justice, honesty, & morality, which most states define as any criminal act, or at least a felony

5. Civil Disabilities Today • Main justifications for collateral consequence statutes: • Some civil rights must be removed in order to maintain public confidence in government operations, such as running for public office & serving on a jury • Government benefits should be restricted to the law abiding, such as welfare, pension, student financial aid, federal employment opportunities, & naturalization • Loss of some rights serve to increase public safety & protect children from harm, such as firearms restrictions & sex offender registration

6. How Rights Are Lost • Civil rights can be lost through judicial discretion, licensing agencies, or statute • Each state determines which civil & political rights are lost & when and how long they are lost, although there are some rights that are lost across the board under federal law • Commonly restricted rights include: • Voting • Owning a gun • Certain government benefits • Parental rights • Holding public office • Limitations in court • Limitations on employment • Losses specific to sex offenders

7. Loss of the Right to Vote • About 5.3 million people in the U.S. cannot vote because of a felony conviction, about half of whom have completed their sentence successfully • The Supreme Court ruled that states can disenfranchise offenders in Richardson v. Ramirez (1974) • Most states still deny the right to vote to offenders on parole or probation • The trend, however, is for states to restore voting rights to offenders who have completed their entire sentence or make the process of having rights restored less difficult

8. Voting Restrictions

9. Loss of Employment-Related Rights • Limitations of employment related rights subsequent to conviction: • Public employment • Private employment • Right to an occupational license • Loss of capacity to be bonded • Loss of good moral character

10. Private Employment • Private employers may legally discriminate when making hiring decisions based on an applicant’s prior conviction • More employers are conducting background checks prior to offering a job, using Internet companies to do the checks • Employers can avoid lawsuits for negligent hiring this way, but they can also use the criminal record as a reason for not hiring • Florida & Hawaii allow employers to consider convictions only after a conditional offer of employment is made

11. Public Employment • Most states allow public employment for people convicted of a felony unless the offense is directly related to the job sought • Some states apply a direct relationship test & consider other factors such as rehabilitation, the time lapsed since the offense, the offender’s age at conviction, & the nature & seriousness of the offense

12. Occupational Licenses • Over 800 occupations & professions have restrictions on licenses for ex-offenders through federal, state, & local laws • Statutes vary from jurisdiction to jurisdiction & lack uniformity • Some laws impose restrictions that apply to all felony convictions; other laws only restrict licenses if the crime was directly related to the occupation • Some laws require a licensee to possess good moral character & conviction is considered evidence of bad character

13. Examples of Occupations that require a license

14. Loss of Capacity to be Bonded • A bond protects the employer or company from losses caused by dishonest employees • The bonded employee is known as the principal & signs & pays the fee for getting a bond • A surety bond is signed by the principal & a third party, a surety, who promises to pay if the assured suffers damages because the principal failed to perform • Sureties investigate people who request bonds & deny bonds to poor risks • Persons with felony convictions are often considered poor risks for being bonded

15. Firearm Restrictions • Federal law prohibits convicted felons from possessing, shipping, transporting, or receiving any firearms or ammunition • Federal law also prohibits possession of guns by anybody convicted in any court of domestic violence, which is a misdemeanor crime • 37 states restrict firearm possession & ownership for convicted felons, 7 restrict just the possession of firearms, 21 states allow firearms restrictions to be restored, 7 states have no restrictions whatsoever

16. Government Benefits for Drug Offenders • If an offender is incarcerated, social security, unemployment, welfare, Medicaid, & Medicare are stopped until release, & the offender must reapply • Offenders convicted of drug crimes lose SSI & Social Security Disability if the “disability” is alcohol or drug dependence • College students who are convicted of a state or federal drug offense while receiving financial aid are ineligible to receive future federal aid, & 24 states also disqualify students for state level aid – the restrictions continue for a time period that depends on whether it was a first, second, or third offense

17. Government Benefits for Drug Offenders, cont’d • Under the Welfare Reform Act, persons convicted of possession or sale of controlled substances cannot receive food stamps & other welfare benefits unless the state “opts out” & modifies the ban • HUD can prohibit occupancy to any individual who uses drugs or infringes on the health, safety, or peaceful enjoyment of the premises • HUD can ban individuals for 3 years who were evicted for drug-related activity • HUD can ban sex offenders who must register for life and persons who manufactured meth on public housing property

18. Loss of Parental Rights • 18 states may terminate a parents’ rights for long-term incarceration • 37 states can terminate parent’s rights for a serious felony conviction against 1 or more children in the household

19. Losses in Court • Federal law prohibits convicted felons from serving on a federal jury unless their rights have been restored • Felons are not permitted to serve on juries in all but 4 states • 11 states and the District of Columbia allow felons to serve on juries after they complete their sentence • Most states allow the right to be restored through a pardon or expungement • Offenders convicted of perjury or of the subornation of perjury are absolutely disqualified to a be a witness in court

20. Right to Hold Public Office • Elected & some appointed positions in the government are regarded as public offices • Federal law & the U.S. Constitution exclude some offenders from holding certain public offices of the U.S. government • 40 states have laws that also restrict felons from holding some public offices, some states restore the right after the sentence has been fully served or a certain time has lapsed, while other states do not

21. Effects of a Felony Sex Offense Conviction • Sex offender registration laws • Sex offender notification laws • Residency requirements that prohibit sex offenders from living within 500-2500 feet from areas where children are: schools, parks, public pools, shopping malls

22. Involuntary Civil Commitment of Sex Offenders • Involuntary civil commitment of sexual predators after they have been released from their criminal sentence, if: • They pose a continuous threat • The threat is related to a lack of control • The offender has a severe mental illness • The Adam Walsh Child Protection Act requires sex offenders be screened prior to release to see if they are sexually dangerous • Because it is civil commitment there is no problem with double jeopardy, ruled the U.S. Supreme Court in Kansas v. Hendricks (1997) • In Kansas v. Crane (2002), the Court ruled civil commitment is permissible only if there is proof the offender has difficulty controlling their behavior, which is related to a serious mental illness

23. Involuntary Civil Commitment • Many states dealing with sexually violent predators are committing them to inpatient treatment. The commitment program in Texas, enacted in 1999, is unique because it is outpatient civil commitment. • In other states, the civilly committed sex offender is placed in a locked, secure residential facility. In Texas, the civilly committed violent sexual predator is allowed to transition back into the community after their prison sentence ends and are mandated to actively participate with intensive outpatient sex offender treatment & supervision. • See the Texas Health & Safety Code Title 11 Civil Commitment of Sexually Violent Predators, Chapter 841.

24. Restoring Rights Through a Pardon • A pardonis an official act of forgiveness or mercy • Courts differ on the legal effect of a pardon • The power to pardon historically belonged to a king or sovereign • Under the U.S. Constitution, the President has the power to pardon in federal cases except impeachment • In most states, the power to pardon felony cases belongs to the governor, acting alone or in conjunction with some official or board of pardons • Statutes differ as to when an offender can apply for a pardon

25. Pardons & Procedures for Obtaining One • Absolute pardons are unconditional, absolve the individual from all legal consequences of their conviction, & restores most rights • Conditional pardons take effect when the offender meets certain conditions & do not restore full civil rights unless specified • The offender must apply for a pardon • Generally, they must notify certain people about their application & post a public notice • In some states there may be an investigation & a public hearing

26. Legal Effects of a Pardon • There are 2 views of whether a pardon wipes out guilt • The majority view is that a pardon is an implied expression of guilt & the conviction is not erased • Each state determines what view it upholds, the procedures for getting a pardon, & the effects of a pardon (which are binding in only that state) • A pardon does not automatically restore an occupational license that was revoked because of a conviction

27. Other Ways of Restoring Rights • Restoration of rights may be done by application or by automatic restoration • Automatic restoration of rights upon completion of sentence is possible in 33 states • Automatic restoration does not erase the conviction which can be used against the individual as a prior felony & must be reported as a conviction on job applications • Certificates of rehabilitation can be issued in states without automatic restoration but must be applied for by the offender

28. Expungement of Records • Expungement (erasing or destroying a record) & sealing (closing an existing record) are 2 ways to limit public availability to arrest & conviction records • Each state deals with expunging & sealing arrest & conviction records differently • 40 states allow people to expunge or seal arrest records & if the applicant is successful, 30 of those same states also allow the denial that these arrest records exist • Less than ½ that number of states allow expungement for convictions

29. Expungement Records, Cont’d • In all but 10 states, even if the record is expunged, the information is still accessible to law enforcement, courts, & other government agencies • The meaning of the word is misleading, because some expungement statutes only remove the court decision, but not evidence of the case itself. If allowable, a defendant must specify the expungement of both the arrest & conviction records, or must first expunge the decision, and then seal the rest of the record

30. Sealing Records • Because there is easy access to criminal records on the internet, even after expungement, extra steps may be necessary • A petition for nondisclosure is a court order prohibiting public disclosure of a defendant’s criminal history record • Sealing of records officially closes records & usually applies to juvenile adjudications or adult arrests & diversions that did not result in conviction • State statutes differ on the procedures involving sealing records & nondisclosure petitions

31. Should Offenders Be Less Stigmatized? • Collateral consequences make it difficult for offenders to find jobs & decent housing • It’s important to remember that research shows the risk of re-offending is reduced over time & with age. Are life-time bans necessary or effective? • When has an offender paid their debt to society? • How does marginalizing former offenders serve public safety?

32. Involuntary Civil Commitment • Many states dealing with sexually violent predators are committing them to inpatient treatment. The commitment program in Texas, enacted in 1999, is unique because it is outpatient civil commitment. • In other states, the civilly committed sex offender is placed in a locked, secure residential facility. In Texas, the civilly committed violent sexual predator is allowed to transition back into the community after their prison sentence ends and are mandated to actively participate with intensive outpatient sex offender treatment & supervision. • See the Texas Health & Safety Code Title 11 Civil Commitment of Sexually Violent Predators, Chapter 841.

33. Loss of Employment-Related Rights • In 2000, President Clinton commuted the sentence & ordered the release of 31-year old Serena Nunn, who, at 19, was arrested and charged with aiding and abetting the distribution of cocaine. Under federal mandatory minimum sentencing laws, Nunn, who had no prior record, was sentenced to 15 years & 8 months in federal prison. • Today, Nunn, a graduate of the University of Michigan Law School, assists lawyers but is not allowed to practice law because her conviction prevents admission to the Georgia State Bar. The only way to overcome the restriction is with a Presidential pardon, for which she has applied, but that can take several years. • http://www.sentencingproject.org/detail/news.cfm?news_id=1211&id=167