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... II. EMPLOYMENT DISCRIMINATION AGAINST EX-FELONS A. Societal Impacts B. Laws Restricting Employment 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.
I. DISENFRANCHISEMENT OF EX-FELONS
A. 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 privileges and responsibilities." (29) In the late 1950s, the National Conference on Uniform State Laws, the American Law Institute, and a number of other prominent advisory bodies all decried the practice of denying former criminal offenders the vote: "In their eyes, disenfranchisement excluded offenders from society and thus increased the likelihood of recidivism." (30) Scholars too have drawn a link between loss of the vote and continued criminal activity, suggesting that the psychological effect of being fenced out of the polity damages former felons' ability to successfully reenter society. (31) A demonstrated connection between disenfranchisement and increased crime would be a powerful policy argument for allowing former prisoners to vote, even for those who are not sympathetic to former prisoners themselves. The link between voting rights and rehabilitation has not been empirically verified, however.
Even without empirical evidence demonstrating a link between recidivism and disenfranchisement, there are other strong arguments for restoring the vote to ex-felons. (32) The striking effect on minority voting power, as well as the sheer number of people barred from the ballot box, are significant causes for concern in a democratic society. The practice of depriving individuals of the right "preservative of all rights" (33) long after they have served their sentences also raises basic questions of fairness and humanitarian treatment. Finally, given the many seemingly minor crimes that fall under the "felony" label, the results in individual cases can be quite arbitrary and disturbing. For example, "an eighteen-year-old first-time offender who trades a guilty plea for a non-prison sentence may unwittingly sacrifice forever his right to vote." (34)
B. Laws Restricting the Voting Rights of Ex-Felons
1. State laws excluding ex-felons from the suffrage.
Felon disenfranchisement laws have existed in the United States since at least the mid-nineteenth century, if not earlier. (35) The concept of a "felony," however, has expanded to include a significantly wider range of behavior today. (36) Current laws excluding felons from elections vary widely in terms of the waiting period before rights are restored, whether the state restores rights automatically or whether an application is required, the types of crimes that result in voting restrictions, and the class of felons to which the laws are applied (in other words, prisoners, parolees, probationers, or ex-felons). As comprehensive analyses of historical and current state disenfranchisement laws are provided elsewhere, (37) the following discussion gives only select examples of current laws affecting ex-felons with a focus on states' efforts to tailor their classifications to a legitimate governmental purpose. (38)
Fourteen states currently disenfranchise ex-felons. (39) Of these states, two states' laws apply only to felony convictions before a certain date. (40) Five others make some attempt to narrow the law's effects within the broad class of "felons." (41) For example, in Arizona and Maryland, voting disqualifications generally apply only after a person's second felony. (42) Mississippi, rather than disqualifying the whole class of felons, lists its disqualifying crimes: murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, and bigamy. (43)
It is not obvious why these crimes should result in losing the right to vote while other crimes do not. What legitimate purpose might be underlying the distinction? One possible explanation is that the state aims to punish serious crimes more severely and disenfranchisement is one element of punishment. However, even putting aside questions about the legitimacy of denial of voting rights as a penal measure, disenfranchisement does not always correspond to the seriousness of the crime. A person can lose the right to vote in Mississippi for a "bad check" conviction, but not for "sexual battery." (44)
Other states' laws draw no distinctions at all between former felony offenders. In Iowa, for example, anyone convicted of a felony under state or federal law is disqualified from voting unless the Governor or the President later restores the person's rights. (45) Provisions in Florida, Virginia, Nevada, and Wyoming are similar. (46) Kentucky disqualifies all felons as well as persons convicted of "treason" or "bribery in an election" and any "high misdemeanors as the General Assembly may declare." (47)
In sum, ex-felon disenfranchisement laws in the United States reach quite broadly. The few states that attempt to tailor their laws do so either by limiting the types of crimes that trigger disqualification or by applying the laws only to repeat offenders. A small number of states make a connection between election-related crimes and loss of the vote, (48) but, more often, disqualification seems to serve as additional punishment for those who have committed the most severe crimes or who are repeat offenders. (49)
2. Restoration of voting rights.
In theory, the effects of ex-felon disenfranchisement may be tempered by the possibility of regaining the vote through an application for restoration of civil rights. In reality, however, most ex-felons never regain their rights because they do not have adequate information about the process, because they do not have the financial resources for a successful application, or because they do not have the political resources to gain a pardon, which is necessary for civil rights restoration in some states. (50)
The application materials, requisite waiting periods, and eligibility provisions vary widely from jurisdiction to jurisdiction, but regaining one's rights is rarely an easy process. (51) An example from Florida demonstrates how burdensome the process can be. A former felon must fill out a sixteen-page form if she has not paid the fees and restitution associated with her conviction. (52) The form requires applicants to detail seemingly irrelevant information, such as the cause of their parents' deaths and any civil litigation in which they have been involved. (53)
Despite this example, Florida has a more lenient system for restoration than some other states. In Florida, a felon may have her right to vote restored by obtaining a full pardon, conditional pardon, or "restoration of civil rights," whereas in Alabama, Iowa, Kentucky, and Mississippi, only a full gubernatorial pardon or an executive order is sufficient. (54) Some states do not have a mechanism for restoring the right to vote to persons convicted of federal crimes. In those states, only a presidential pardon will restore the ex-felon's voting rights.
Statistics bear out the intuition that most ex-felons either do not seek out or do not successfully complete the rights restoration process. According to recent data, Florida granted restoration of rights to only 1400 people in 1997, compared to 139,000 Floridians who remained disenfranchised in 1998. (55) Of the more than 200,000 disenfranchised ex-offenders in Virginia, only 404 received gubernatorial pardons in 1996 and 1997. (56)
In all states, restoration is a matter of grace, not of right. "Those denied restoration are given no explanation, and the decision is not subject to review." (57) In light of the many hurdles facing former prisoners who attempt to regain their rights through administrative procedures, the possibility of restoration does not truly temper the effects of initially taking away the votes of ex-prisoners. In reality, most will remain unable to vote despite this possibility. (58)
C. Scholarly and Public Attention to Civil Disabilities
Although it had been a concern since the late 1950s, ex-felon disenfranchisement received increased national attention as a result of the 1998 Human Rights Watch/Sentencing Project report (59) and the 2000 presidential election. The National Commission on Federal Election Reform, convened in the wake of the 2000 election and led by former Presidents Jimmy Carter and Gerald Ford, recommended that states restore the vote to felons who have served their sentences and are no longer on probation or parole. (60) The media has zealously covered the issue both nationally and locally. (61) In fact, denial of political rights is "[a]mong the most highly publicized" collateral consequences for offenders. (62)
In addition to coverage by the popular press, numerous scholars have weighed in on ex-felon disenfranchisement. Topics range from the effects of felon disenfranchisement on political parties and racial minorities, (63) to its lack of justification as punishment or public policy, (64) to potential legal challenges to the practice. (65)
Employment discrimination against ex-felons has not engendered the same level of public or scholarly interest in recent years. Only a few law review articles have recently focused on employment barriers to ex-offenders, (66) though the 1970s produced a steady stream of scholarship on the issue. (67) None of the recent articles on employment focuses specifically on legal challenges to statutory and licensing restrictions.
Attention within the legal advocacy community, though hard to measure, seems to have followed the same pattern. "The aftermath of Election 2000 seems to have reinvigorated the voting rights restoration movement" (68) and a number of major civil rights organizations have taken up the reenfranchisement cause. On the other hand, neither these groups nor many employment law organizations have current campaigns to expand employment opportunities for former criminal offenders. (69) Although a number of legal aid organizations provide assistance to former offenders as one of many services offered, (70) the author could identify only one legal organization with a primary focus on the employment rights of former offenders. (71)
This may be in part because "much of the response to the problem of integrating and rehabilitating ex-offenders occurs at the community level," through programs such as Chicago's Safer Foundation. (72) In addition, the employment situation may not arouse as much ire in the legal advocacy community because responses to the problem seem to have been more forthcoming than in the voting rights context. For instance, the Equal Employment Opportunity Commission's (EEOC) interpretation of Title VII of the Civil Rights Act of 1964 provides some protection...
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