VI. Counterarguments
While this approach is a workable solution, it is far from perfect. Three important counterarguments may be addressed up front. The first is a separation of powers argument asserting that such decisions regarding state licensing ought to be left to the state legislatures. The second argument asserts that the Eighth Amendment may be better suited for this type of challenge. The final criticism argues that the constitutional claim ought to be a Sixth Amendment ineffective assistance of counsel claim.
A. Separation of Powers
One could argue that this issue is better suited for the legislature as it is this branch of government that reflects the will of the people and contemplates reforming licensing in its individual state. This argument brings to the fore issues of separation of powers. Under this argument, the approach advocated in this Article would promote unwarranted judicial activism. While there is merit in this argument, it is important to remember that the judiciary serves as a check on the other two branches of government, as was intended under separation of powers. Understanding that the legislature is the proper place for legislative reform, the judiciary is still responsible for ensuring that individual interests and rights are afforded requisite constitutional protections. It is within the province of the judiciary to make certain that arbitrary, capricious, and unreasonable government conduct is checked, and the life, liberty, and property of individuals are afforded the appropriate degree of due process. Deference to the legislature is not always the correct judicial response. The Court has taken the liberty to invalidate punitive damage awards issued by juries against corporate entities and state laws failing to provide sufficient judicial review of punitive damages. Will the Court offer the same protection to individuals faced with the deprivation of their ability to work, go to school, or engage in civic life? This is a normative consideration that will have to be addressed by the courts or the people.
As a general matter, felons lack both political and social capital. Felon disenfranchisement is the subject of numerous scholarly articles as well as quantitative and qualitative studies. According to stigma theory, ex-offenders are denied the right to vote because they are deemed “morally incompetent, unredeemable, and likely to recidivate.” Originating from European Enlightenment thinkers such as Hobbes and Rousseau, “civil death” required convicts be to be treated as “lawful enem[ies] of the commonwealth” and separated from the citizenry for violating the social compact. In America, reasons for precluding felons from voting include preserving the “purity of the ballot box,” weakening law enforcement institutions, and protection of the welfare of communities.
Professors Uggen and Manza estimate that 5.3 million adults were legally disenfranchised by virtue of conviction in 2000. Three-fourths of this population were either under community supervision or had completed their sentence, yet they were still disenfranchised by state statute. Professors Uggen and Manza conclude that disenfranchisement has affected “seven U.S. Senate races from 1970 to 1998,” particularly in states with a close election and a number of disenfranchised persons in their jurisdiction. At last count, 2% of the general population and 13% of black males were disenfranchised as a result of criminal conviction.
Statutory prohibitions on voting reduce turnout in many communities, especially minority communities. In this respect, democratic decision-making with regard to policies adversely affecting ex-offenders is impaired: “The exclusion of ex-offenders from full participation in political life affects the quality of the decision-making with regard to such issues by community residents themselves.” Justice Thurgood Marshall recognized the importance and value of the inclusion of ex-offenders in the political process as he asserted,
[Ex-offenders] are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.
Without social capital, the cycle of deprivation continues with ex-offenders being the hardest hit.
Although legislators and ex-offenders have much in common by way of reforming penal policy, albeit for different reasons, it is unlikely that a true coalition will be built. Legislators hoping for increased revenue through a productive, employed citizenry and ex-offenders needing occupational opportunity, will doubtful unite to reform current occupational licensing schemas. The reason for this skepticism stems from the fact that legislators are preoccupied with election risks, and being associated as a champion of ex-offender employment could make constituents uneasy about their legislators' stance on crime. Despite state and federal studies on incarceration costs and recidivism, retrenchment from escalating criminal penalties is unlikely to take place in a legislative forum until courts begin to assess the constitutionality of employment consequences of conviction and signal a need for change.
B. Eighth Amendment
Another counterargument is that the Eighth Amendment is better suited to address the issue of occupational consequences because criminal conduct underlies the government deprivation. This argument, while important and potentially true, is flawed. First, collateral consequences of conviction are civil penalties and are unlikely to be deemed an extension of criminal punishment. This calls for a different mode of analysis the Eighth Amendment cannot provide. Moreover, the Court's tortured history with proportionality and prison sentences has thus far resulted in a line of precedent that offers almost no protections against excessive prison sentences but offers significant protection against excessive punitive damage awards. The Court has been hesitant in the application of proportionality in evaluating sentences and has often regressed from any asserted principles defending an individual prisoner's Eighth Amendment right against excessive penalty. Under Eighth Amendment jurisprudence, collateral consequences are likely to have a mixed outcome at best.
C. Sixth Amendment
In light of the Supreme Court's decision in Padilla v. Kentucky, reentry scholars are arguing to extend the Sixth Amendment right to counsel to other types of collateral consequences of conviction. This position appears to be a logical extension of Padilla; however, it may not be that simple. There are numerous hurdles to overcome.
The principal issue is the collateral consequences rule and its history in conjunction with the Sixth Amendment right to counsel. The collateral consequences rule states:
For purposes of determining whether a trial court has complied with its duty under the Due Process Clause to ensure that a guilty plea is knowing, voluntary, and intelligent, the Supreme Court has distinguished between direct consequences, which must be explained to the defendant, and collateral consequences, which the plea court has no duty to explore.
Direct consequences include the maximum term of imprisonment and fines for the crime charged. Collateral consequences, on the other hand, include parole and probation issues, civil commitment and forfeiture, habitual offender statutes, registration requirements, disenfranchisement, ineligibility to serve on a jury, and loss of professional licenses. All federal circuit courts of appeal except the Eighth and the Federal Circuit accept the rule, as do thirty-five state jurisdictions. While the Padilla Court found deportation to be directly connected to a criminal conviction, it is unlikely that occupational licenses will be given the same treatment. The issue of deportation has invited a range of opinions on how removal as the result of criminal conviction should be treated even in those jurisdictions that have adopted the collateral consequences rule.
The sheer number of civil penalties in each jurisdiction may also dissuade courts from imposing an affirmative duty on defense counsel to warn their clients of all collateral consequences. While the ABA recommends that defense counsel warn their clients of these civil penalties, the Supreme Court has asserted that these ABA recommendations are only guides and are not binding on the courts.
It is important to mention that the Padilla Court dissenters, Justices Scalia and Thomas, may have joined the majority had Padilla grounded his constitutional claim in due process. For Justice Scalia, the text of the Sixth Amendment guarantees a right to counsel in all criminal prosecutions and not in all matters collateral to criminal prosecutions. For constitutional textualists, this line of reasoning makes perfect sense.
The argument made by reentry scholars that the Sixth Amendment is the proper vehicle to challenge collateral consequences is both salient and legally sound, but it is only one tool in the reentry toolbox. This article advocates for yet another claim for individuals challenging the constitutionality of civil penalties, occupational licenses in particular, triggered by a criminal conviction.
