Unequal Protection: Comparing Former Felons' Challenges to Disenfranchisement and Employment Discrimination

Article excerpt

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. …