BY ALAN ELLIS, PETER J.SCHERR
Criminal Justice, Fall 1996
When a federal felon is released from prison after serving his or her sentence, there are a host of issues that must be confronted, not the least of which is the civil rights he or she may have lost.
The basic civil rights guaranteed to all citizens of the United States are so often touted as a fundamental part of American citizenship that their loss is frequently overlooked when I speak of those who have served a federal felony conviction—often until it's too late. The restrictions placed on felons after their release from prison can be the foundation for further jeopardy. Recently released felons must know what rights and entitlements they retain in order to avoid needless hassle and potential prosecution because under the laws of many states, as well as federal law, the ramifications of a felony conviction can endure long after the sentence has been served. A classic example is the right of a felon to possess a firearm.
One of the most common mistakes made when discussing restoration of a federal felon's civil rights is the assumption that it is necessarily a function of federal law. The deprivation and restoration of a felon's civil rights is almost exclusively a matter of state law. While there are certain areas in which the civil collateral consequences of a federal felony conviction are codified, the majority of the power to deny and restore a felon's civil rights is found in the states. A quick glance at the laws of several states, however, reveals that, as they say in real estate, just about everything is determined by location, location, location. Where federal inmates find themselves upon release will be the guide to determining what civil rights they have retained and those for which they will have to fight.
The States' Role in Civil Disabilities
At first glance, it may seem that the question of what rights and privileges a federal felon may lose or retain is easily answered. A closer look reveals a patchwork of disqualifications and restorations. The laws governing the same rights and privileges vary widely from state to state, as well as various federal preclusions from some essential rights. Convicted felons may lose essential rights, such as the right to hold a public office or to vote. Eligibility to earn a living and practice a profession may be restricted. And, in almost every state, as well as under federal law, convicted felons will either be restricted in or relinquish their right to carry or possess firearms. These disabilities and the collateral consequences that flow from a federal felony conviction can be explained as burdens that result from a conviction.
The majority of jurisdictions do, however, provide for a means of removing these burdens. Relief frequently comes automatically with the passing of time, or through an executive or judicial act that is often based on demonstrating that the defendant has been rehabilitated. Again, as with the disability itself, there is no general agreement on how the burdens are lifted. The road to relief must be evaluated on a state-by-state basis and in light of the few governing federal laws.
One of the major roadblocks to lifting restrictions on a federal felon is found in states that require a pardon for removal of state law disabilities. This is a result of various states' adoption of the principle that the Supremacy Clause of the United States Constitution precludes them from granting a pardon to federal offenders, as that would amount to a derogation of the president's pardon power. It should be noted that this position may be somewhat inconsistent with federal power to impose civil disabilities on federal offenders under the respective state laws. Nonetheless, many states recognize that while it is solely the president's power to pardon a federal offense, the states do have the power to restore to the federal offender the rights taken away by operation of state law.
Despite the variation from state to state for restoring a federal felon's civil rights, there are several patterns that emerge. There are roughly five different categories in which to divide the states. First, there are the states in which few, if any, civil rights are lost as a result of a felony conviction, and, if lost, are restored automatically upon release from prison. The second group includes states that provide for restoration of rights upon the felon's release by completion of the sentence or by way of a certificate of discharge from the sentence. The third group of states requires the felon to go through a court or administrative procedure and may require demonstration of rehabilitation. In the fourth group of states, federal felons can have their civil rights restored only if they are granted a pardon. The final and fifth category includes states in which federal felons lose one or more of their rights permanently.
More than half of the states require a pardon before one or more of the basic civil rights are restored. Unfortunately, the majority of these states declare that federal offenders are ineligible for state pardons, with about 20 states requiring the pardon to be granted by the president. (For state-by-state details, see Civil Disabilities of Convicted Felons: A State-by- State Survey, United States Department of Justice, Office of the Pardon Attorney (October 1992).) This all begs the obvious question of what civil rights are lost by a person who suffers a federal felony conviction. Again, this varies from state to state, but there are a few basic rights that are not lost as a result of a felony conviction. First and foremost is the right to vote. This is generally never lost on a permanent basis and if it is lost it is only for the time served. The right to sit on a jury is perhaps the hardest right to regain. A number of states also deny the restoration of the right to hold office, even if the felon has been granted a pardon. On the other hand, a large number of states forbid the automatic deprivation of employment based on a felony conviction, but a majority of states afford for factoring in criminal conduct as a reason for denying occupational or professional licensing.
A few examples of some of the states' procedures for restoration of certain civil rights will illuminate the variations. In Arizona, federal felons lose the right to vote, serve on a jury, hold a public office, and own a firearm (in the case of violent offenders) as a result of their conviction. The first-time offender felon has most of these rights automatically restored upon completion of his or her sentence (except for owning a firearm, which requires a court or administrative proceeding), but recidivists must apply to the court or obtain a pardon. Federal offenders are precluded from receiving state pardons, but can obtain automatic restoration or court relief.
Those ex-felons who find themselves in Vermont will have lost only the right to serve on a jury if they were sentenced to a period of imprisonment, but the right can be restored by pardon. The law of Vermont is still unsettled on the issue of whether federal offenders are eligible for state pardons.
In New York, federal felons lose the right to serve on a jury, the right to vote, and must forfeit their publicly held office. The right to vote is lost only while they are incarcerated and is automatically restored upon expiration of the sentence or by administrative or court procedures. A federal felon in New York cannot receive a state pardon and is permanently banned from carrying, pogessing, or owning a firearm.
Federal Felonies, Guns and The Law
The issue of firearms disabilities is extremely complex and specialized. It is where state law and federal law cross paths to create an even more diverse and patchwork-like result. Of paramount importance is the Supreme Court's decision in Beecham v. United States, 114 S. Ct. 1669 (1994) where it was held that even if the felon's civil rights have been restored under state law, federal firearms disabilities continue to apply to a person convicted of a federal offense. The Court concluded that the restoration of rights required under 18 U.S.C. § 921(a)(20) to remove a federal conviction from the coverage of the felon in possession statute must be accomplished under federal, not state, law. It should also be noted that some of the firearms disabilities imposed may apply to handguns, but not rifles and other long guns. This is further convoluted by the fact that in some jurisdictions, only persons convicted of violent crimes are precluded from possessing firearms; in other jurisdictions the felon may be permitted to possess but not carry the firearm. In some states, the federal felon may lose the right to carry and possess a gun outside of his or her home or business. In any event, there is considerable variance from state to state on what the terms "carry" and "possess" actually mean. This maze of varying rights and responsibilities can often leave a recently released federal felon grappling with uncertainty in determining where law abiding behavior ends and criminal conduct begins. What becomes clear from this brief review is that there are no consistent rules or guidelines for what civil disabilities a person convicted of a felony suffers.
The loss of various civil rights may, for the most part, be controlled by state law, but there are a host of federal civil disabilities that flow from a federal felony conviction. These collateral consequences under federal law are found both in various statutes and the U.S. Constitution.
The right to vote is virtually unrestricted by the Constitution. While there are no qualifications set in the Constitution for voting, it does prohibit disenfranchisement on several grounds, including age, gender, and race. (U.S. Const. amend. XIII, XIX, XXVI.) Instead, the Constitution recognizes the states' power to set qualifications for voting, even in federal elections. (U.S. Const. art I, § 4; art. II § 1, amend. XVII.) The Fourteenth Amendment expressly recognizes the states' authority to deny the right to vote based on a conviction. Once again, this means going to the laws of the state in question to determine whether the federal felon has the right to vote.
The right to serve on a federal grand or petit jury for a person convicted in federal or state court for a crime punishable by imprisonment for more than one year is restricted by 28 U.S.C. § 1865. Unless the felon's civil rights have been restored, this statute precludes federal jury service. Because there are no federal laws for restoring civil rights, section 1865 presumably refers to restoration of civil rights under state law.
The right to hold federal office or employment may also be restricted by operation of federal law. Generally, a federal felony conviction does not automatically disqualify a person from federal employment, but it is considered a factor in evaluating suitability. In some cases, a person employed by the federal government who has been convicted of a felony may lose or forfeit his or her employment if the offense arises from advocating the overthrow of the government (18 U.S.C. § 2385). In most circumstances, the greater the relationship between the offense committed and the type of employment, the more likely the felon will be precluded from federal employment.
A person who holds a federal license, such as a customs broker's license or an export license, may lose the license as a result of a conviction. These types of disabilities will most often be found where there is some relationship between the criminal conduct and the license held. A drug conviction may also result in the loss of a certain license (21 U.S.C. § 862).
There are a host of federal benefits that may be revoked when a person is convicted of a federal felony. Persons convicted of drug offenses after September 1, 1989, may lose or have restrictions and modifications placed upon their grants, licenses, contracts, and other federal benefits. Excluded from this list are benefits such as welfare, Social Security, retirement, health, disability, and public housing benefits. The public housing benefits may be restricted if the offense includes criminal activity that "threatens the health, safety, . . . [or] peaceful enjoyment of the premises by other tenants or any drug related activity on or near such premises." (42 U.S.C. § 1437f(d)(1)(B)(iii).) Not only is the tenant covered by this statute, but actions by his or her household members and guests can force the tenant to lose this privilege. Once evicted for drug-related activity, the tenant must wait three years before reentering public housing.
A federal felon may also be restricted by a sentencing court in his or her occupational choices. As a condition of probation or supervised release, if there exists "a reasonably direct relationship" between the defendant's criminal conduct and his or her occupation, the sentencing court may impose restrictions. (U.S.S.G. § 5F1.5.)
A person convicted of a federal felony will also be restricted in his or her ability to become an officer, director, employee, or controlling shareholder of an institution that is a federally insured depository or owns or controls a federally insured depository. Additionally, a person who trades in commodities may be refused registration by the Commodity Futures Trading Commission if he or she has served a federal felony conviction.
In cases where a person has been convicted of offenses, inter alia—robbery, bribery, extortion, embezzlement, murder, and assault with intent to kill—he or she may be prohibited from serving as a consultant, officer, or director of or to labor organizations and employee benefit plans. This prohibition lasts for 13 years after the conviction or the end of the imprisonment, whichever is later, unless the sentencing court sets a shorter period. (29 U.S.C. §§ 504, 1111.) The only means to remove this disability earlier is if the United States Parole Commission or sentencing court restores the defendant's "citizenship rights." Aliens who have been convicted of a felony are disqualified from temporary or permanent residence status as well as temporary residence status as special agricultural worker (8 U.S.C. §§ 1255a(a)(4)(B), 1255a(b)(1)(C)(ii); 8 C.F.R. § 213.3.) There are various other restrictions placed on aliens that will permanently exclude them from the United States.
Once a person has been convicted of a federal felony, he or she is ineligible for enlistment in any of the armed forces. Depending on the crime, felons who are veterans may also lose their benefits, including pensions and disability, as well as Veterans Administration benefits.
Restoration of Civil Rights
The mechanism for the restoration of any of these civil rights and benefits may vary. Perhaps the best means, yet the hardest to obtain, is a presidential pardon. A pardon can serve to restore the federal felon's right to vote, serve on a jury, and to hold public office. It may also lessen other disabilities that have been imposed as a result of a felony conviction. Generally, though, there is no federal statute that provides for the lifting of civil disabilities and the restoration of all civil rights. Again, in most cases, reinstating the rights to vote, hold public office, and serve on a jury are accomplished through state law.
The ever-changing nature of both statutory and case law requires the practitioner to remain vigilant over the latest changes in the laws governing civil collateral consequences that may affect a federal felon. Because the states are such large players in the world of civil rights and disabilities, it is of the utmost importance to be aware of the law of the jurisdiction where the felon will locate after his or her release. As noted, some states have much more liberal and forgiving laws for reinstating a federal felon's civil rights, while other states will never allow this person to partake in the activities most American citizens take for granted.