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Civil disabilities of convicted felons.

A State-by-State Survey Finds Considerable Variation Among Jurisdictions

You've just been released from prison after serving a sentence for a felony conviction and you have begun to reconstruct your life. You've paid your debt to society. Or have you? When it comes to voting, owning a gun or applying for an occupational license, an offender may soon learn that the consequences of a felony conviction linger long after the sentence has been served.

Because conviction of a felony or service of a prison sentence upon felony conviction commonly triggers the loss of various civil rights and limits an offender's ability to engage in various occupations, the reality of life in the late 20th century is that an increasing number of people are or will become subject to disabilities, a term used here to broadly encompass all collateral consequences of conviction beyond the sentence authorized by a criminal statute.

These disabilities take many forms in many arenas, both state and federal, as established and explained by constitution, statute, regulation, rule and court decision, and they may endure long beyond the date of conviction. While intuition may apprise us of the existence of certain disabilities, intuition is not always accurate and disabilities are not always intuitive. Finding out about disabilities is not always a simple task, either, even if it occurred to someone to ask whether a particular disability exists.

These circumstances may explain why a survey on disabilities, titled Civil Disabilities of Convicted Felons: A State-by-State Survey, published by the Office of the Pardon Attorney of the U.S. Department of Justice in October 1992 and then updated in October 1996, has been so popular. Despite its rather narrow topic and, one might suppose, limited audience, the survey has become a frequently requested item, and the office's October 1996 update of the survey has been even more in demand. The increased demand is some indication of the survey's utility, as is the frequency with which the office receives thank-you letters from survey recipients who comment on the paucity of compiled and readily available information about disabilities.

Data Collection

Collecting information about the existence and nature of various disabilities and methods for their removal was a natural outgrowth of the work of the Office of the Pardon Attorney, since removal of disabilities is one of the reasons people seek pardon. Compilation of the information was a challenge, due to the variety of state laws on the subject, the complexity of issues concerning application of disabilities and the difficulty in obtaining current, accurate and detailed information about disabilities. The Office of the Pardon Attorney decided to limit the scope of the survey in order to publish it before the information became outdated.

The survey concentrates primarily on felony convictions, and covers only a limited number of disabilities. The publication contains an entry for each state and the District of Columbia, and focuses on the effects of a felony conviction on three core civil rights: voting, holding state office and sitting on a state jury. Each state's entry also includes examples of occupational disabilities and (in the 1996 edition) notes whether that state has a sex offender registration law. Separate sections in each entry discuss the state's methods for restoring rights lost as a result of conviction, and the loss and restoration of state firearms privileges. The survey also includes a chapter on federally imposed disabilities and federal procedures for restoring rights lost as a result of conviction.

An Overview of Disabilities

Many disabilities are imposed by state, not federal, law, even for federal convictions. With regard to voting, the U.S. Constitution recognizes the right of states to determine the qualifications of electors, even in a federal election, and the 14th Amendment recognizes the ability of states to disenfranchise for conviction of a crime. The theory that allows states to impose other disqualifications upon conviction of a federal crime is not always articulated, but the ability of states to do so seems to be accepted (or not to have been seriously questioned). Similarly, the ability of one state to impose disabilities upon residents who were convicted in another state also seems accepted.

The primary civic rights at the state level that may be affected by felony conviction are the rights to vote, hold public office and sit on a jury. Whether considered a "right" or a "privilege," the ability to possess firearms is, under federal law, nearly always impaired by a felony conviction, and the laws of nearly all states also provide for some type of firearms disability upon at least some offenders.

Loss, suspension or restriction of a professional or occupational license may result from a felony conviction, as well as disqualification from obtaining such a license in the future. Felons may be precluded from being bonded or from serving as a notary public. A felon may be required to register with a local law enforcement agency. A conviction may result in deportation or other adverse immigration-related consequences. A felony conviction may be grounds for impeachment if the felon testifies as a witness. Prolonged incarceration upon conviction may be grounds for divorce. The consequences listed here are exemplary, not exhaustive.

There are varying patterns among the states in whether and for how long disabilities are imposed. The possibilities range from losing virtually no rights, to losing rights only while incarcerated, to losing all rights unless pardoned, and everything in between. Generally, the right to vote is most frequently lost but also is the most commonly restored, either by release from incarceration, service of sentence or passage of time. Conversely, the right to sit as a juror is the most difficult to regain once lost. State firearms disabilities take various forms as well, differing on such issues as the offenses for which a disability is imposed (such as whether it extends to all felonies or only to some smaller category of felonies such as violent offenses), the scope of the disability (such as whether it extends to long guns, handguns or both), the duration of the disability and the method for its removal.

Occupational and professional disabilities also vary, particularly concerning the extent to which a conviction affects licensing or employment decisions. For example, some states do not permit a conviction to be the sole basis for denying employment or licensing unless the conviction is related to the occupation or profession; some disabilities may be imposed only for certain kinds of convictions; and some occupational disabilities are imposed only for a certain length of time. Typically, law enforcement agencies are not subject to such restrictions on considering convictions in making licensing decisions.

Restoration procedures vary considerably from state to state, and even from right to right. Methods for restoring rights may consist of passage of time, successful pursuit of an administrative procedure, successful pursuit of a court remedy or a pardon. So-called "first-offender" pardons, expungement (generally, the sealing or physical destruction of the records of a conviction), reduction of a charge from a felony to a misdemeanor, and set-aside procedures (such as allowing a finding of guilt or conviction to be set aside after the offender successfully completes a period of probation) are other methods for avoiding the collateral consequences of a felony conviction. The availability of such procedures and their specific effects, however, vary considerably from jurisdiction to jurisdiction. For example, a first-offender pardon may restore civic rights but not be effective to restore firearms privileges.

Interpretational Issues

Although the states' laws vary considerably, the determination of whether a disability or a restoration procedure applies in various circumstances may raise issues of interpretation. The generalization that disabilities arise from felony convictions requires explanation, since the definition of a particular disability may not necessarily use the term "felony." In addition, some disabilities are imposed only upon conviction of specified felonies, and some may be imposed upon conviction of certain misdemeanors. For example, the federal felon-in-possession statute, generally prohibiting the possession of a firearm by a convicted felon, does not actually use the word "felon" or "felony." Instead, the phrase "crime punishable by imprisonment for a term exceeding one year" is used to define the disability; that phrase, in turn, is defined largely by what it does not include, although the statute provides that what constitutes a conviction of a crime is determined in accordance with the law of the jurisdiction in which the proceedings were held.

State constitutional or statutory provisions may likewise use particular phrases in describing the kinds of convictions that trigger the disability, such as "infamous crime," "crime of moral turpitude," "crime punishable by imprisonment in the penitentiary," and so on. These phrases may not translate well to out-of-state or federal convictions, however, and state statutory provisions may not expressly address whether and how the disabilities apply to such convictions.

Even when the term "felony" is used, questions can arise, for that word does not have a uniform meaning. What happens when the law of the state of conviction differs from the law of the state of residence with regard to what "felony" means, or with regard to whether the conduct constitutes a felony? For example, the state of conviction may provide that a crime is a felony if the legislature designates it a felony, whereas the state of residence may provide that a crime is a felony if it is punishable by a term of imprisonment exceeding one year. A defendant convicted of a crime for which the authorized penalty is two years imprisonment, but which is designated a misdemeanor by the legislature, would be a misdemeanant in the convicting state's view, but a felon by the definition of the state of residence.

Similar questions may arise with regard to military convictions, since military offenses are not classified as felonies or misdemeanors, and may result from conduct that would not even constitute a crime, let alone a felony, under the civilian law in a particular state. Some states' laws permit resolution of such interpretational problems by providing that the disability applies only when the conduct would constitute a felony under the law of the state imposing the disability (the state of residence).

Questions of interpretation also arise regarding the effect of a restoration of rights by the state of conviction. What happens when a felon receives a restoration of rights in the state of conviction, but then moves to another state? Can the second state impose disabilities upon the offender? Can a state other than the state of conviction restore the rights of an offender? Procedures for restoring rights may be unavailable to offenders convicted in another jurisdiction, although the state imposing the disability may recognize relief granted in the state of conviction. The reasons for these limitations may be both substantive (differences in philosophy regarding punishment and rehabilitation) and practical (difficulty in obtaining records from another state).

With regard to federal convictions, some states seem to take the position that the state can impose a disability upon conviction of a federal crime, but only the president of the United States can remove the disability by granting a pardon. Their apparent rationale is that the Supremacy Clause of the U.S. Constitution prohibits a state from removing disabilities and disqualifications imposed by state law. A similar theory, however, does not seem to lead states to refrain from imposing the disability in the first place. A number of states permit federal offenders to employ procedures for restoring rights that are available to state offenders, but for practical reasons, some state procedures may be available only to state offenders. For example, procedures to set aside a conviction and to reduce a charge from a felony to a misdemeanor are remedies available only to state offenders, as is expungement, generally.

The point at which a person is considered to have been "convicted" also may vary from state to state and from context to context. Is a defendant considered "convicted" once a finding of guilt is made or a plea of guilty is entered, or is he or she not convicted for the purposes of triggering a disability until a sentence is imposed? Must the conviction be final, in that the appeal is concluded or the time for appeal run, before the defendant is considered "convicted"? In some contexts, a person may not be considered "convicted" if he or she pleaded nolo contendere (no contest) to the offense. Laws imposing disabilities may not address these issues expressly, thereby leaving unresolved issues for interpretation.

Another important consideration in determining the applicability of a disability is the date of the conviction in relation to the effective date of the constitutional or statutory provision imposing the disability. Many disabilities are prospective only, applying only to crimes committed on or after a certain date. Thus, whether a disability applies at all may depend on the date of conviction. Similarly, restoration procedures change over time, and close examination must be given to whether the procedure in effect at the time restoration is sought necessarily applies, or whether the procedure in effect at the time of the conduct that led to conviction (or some other time) might apply instead.

Change Over lime

The law had changed considerably between the time the research for the 1992 survey was completed and four years later, when the survey was updated. The more recent laws reflected more restrictions on access to firearms by persons convicted of a crime. Also of interest was the emergence of disabilities for persons adjudicated delinquent for acts that would constitute crimes if prosecuted in adult court, such as firearms disabilities that last beyond the age of majority. Specific disabilities for sex offenders, including sex offender registration requirements and occupational disabilities in fields such as teaching and child care, became common in the years following the survey's first edition. Perhaps as a result of the influence of the drafting process for sex offender registration laws, newer laws are more likely to specifically address the treatment of federal and out-of-state convictions in defining disabilities and procedures to restore rights.

A major body of case law interpreting state laws defining disabilities has continued to develop as a result of prosecutions under the federal felon-in-possession statute. This statute defines the federal firearms disability imposed upon conviction of a state felon, in part, by whether the felon's civil rights have been restored.

Federal firearms laws may also become a force in the development of the law regarding expungement of convictions. The recently enacted federal firearms disability, for persons convicted of misdemeanor crimes involving domestic violence, has been applied to convictions predating the enactment of the disability. This disability, unlike the disability imposed upon conviction of a felony, contains no exception for law enforcement personnel, who must be able to possess and carry a firearm in order to keep their jobs and who, perhaps surprisingly, have been reportedly affected by the new law in sufficient numbers for the issue to be reported. Some affected persons have sought expungement or set-aside of their convictions in order to avoid the application of the disability.


Whether to impose disabilities upon convicted persons, what kinds of disabilities, and for how long have been subjects of discussion for some time. Both the American Law Institute's Model Penal Code and the American Bar Association's Standards for Criminal Justice address these issues. Laws imposing disabilities reflect a struggle between the competing interests of clarity and flexibility, punishment and rehabilitation, and protection of the community and reintegration of the offender into society. The coherence and consistency with which the laws resolve these competing interests vary from state to state, and piecemeal handling of disabilities is not uncommon. The result may be undesirable complexity, inflexibility or internal inconsistency, which raises questions about the ability of an offender to comply with the laws, the ability of society to enforce those laws, and the impact of the laws on the goal of reintegrating the offender into a law-abiding society.

The ultimate goal is to ensure law-abidingness. At a minimum, that means following laws imposing disabilities, which, in turn, renders it essential that offenders be able to obtain information to enable them to follow these laws. Logic suggests that the more complex or obscure these laws are, the harder they are to follow. Further, since conviction for a crime may prevent full and equal participation in various aspects of the civic and economic life of the community, the societal justifications and objectives for imposing the disabilities should be well-defined, and the scope of disabilities defined with the laws' goals in mind. Broad, indefinite or after-the-fact restrictions on the ability of persons convicted of crimes to engage in particular activities require careful consideration and reflection about whether the rigidity and severity of such an approach is justified by identifiable societal gains in protecting the community. Further worthy of consideration is the handling of disabilities for persons convicted in other jurisdictions. While practical constraints may make it difficult or undesirable for a state to entertain requests for restoration of rights from persons convicted in other jurisdictions, consideration can be given to recognizing relief granted by the state of conviction.

There are clearly two sides to the reintegration debate, as was well-illustrated by the question a secretary who worked temporarily in the Office of the Pardon Attorney, once asked. After a week of showing considerable interest in clemency, she hesitantly said, "I really believe that people should be given a second chance. But if I'm competing for a job with someone who's been convicted of a crime why should he be equal with me? I never did anything wrong." It's a tough question to answer. It's a tough issue for society as a whole to resolve. When has an offender paid his debt to society?

The price for crime can't be too cheap, lest no one follow the law. Yet, do we achieve another bad result by making it impossible to stop paying for having committed a crime? The goal in all aspects of the criminal justice system is, through a careful balancing of competing interests, to arrive at a resolution that supports, rewards and celebrates law-abidingness, even - and perhaps especially - among the latecomers. The way in which disabilities are defined is one piece of this complex puzzle.

Susan M. Kuzma is deputy pardon attorney with the Office of the Pardon Attorney, U.S. Department of Justice. The survey, Civil Disabilities of Convicted Felons: A State-by-State Survey, is available free of charge and can be obtained by writing the office at 500 First St. N.W., Suite 400, Washington, D.C. 20530.
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Author:Kuzma, Susan M.
Publication:Corrections Today
Date:Aug 1, 1998
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