Done the Time, Still Being Punished for the Crime: The Irrationality of Collateral Consequences in Occupational Licensing and Fourteenth Amendment Challenges

McCarley Maddock

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. Around the country, people who have served their prison sentences and repaid their debts to society face “permanent punishments written into law.” Unlike fines or prison time, these collateral consequences “tend to last indefinitely, long after an individual is fully rehabilitated.”[1] For the more than 600,000 offenders released from state and federal prisons each year,[2] the long-term consequences of their convictions do not disappear, even as the prison gates open.

These statutes, often called barrier crime laws or collateral consequence regimes, have remained on the books, in part, because the constituency they affect— those with criminal convictions or arrests— remains politically marginalized.[3] Further, the state laws that limit opportunities for the formerly incarcerated “are notoriously difficult to track down and understand.” With a renewed interest in criminal justice reform emerging across the country, collateral consequence regimes have started to receive increased attention.[4] With more than 44,000 different collateral consequence laws in existence, states deny the formerly incarcerated a wide range of civil liberties––barring reentry into the workforce with licensing regimes and withholding the right to vote. In total, these laws create a sweeping deprivation of rights touching the lives of nearly seventy million Americans. Collateral consequence regimes raise serious constitutional questions under the Fourteenth Amendment. Specifically, this Note considers the potentially unconstitutional nature of collateral consequences in occupational licensing under a Fourteenth Amendment analysis. In doing so, this Note will proceed in three parts. Part I outlines the Supreme Court’s jurisprudence on the individual’s “right to work” and considers the likely standard of review the courts will use to analyze these occupational barrier laws. Thereafter, Part II will examine historical challenges to collateral consequence regimes and will provide examples of current challenges to collateral consequence employment schemes. Part III introduces a workable standard for judicial review of collateral consequences laws, which Part IV advocates implementing.

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Done the Time, Still Being Punished for the Crime: The Irrationality of Collateral Consequences in Occupational Licensing and Fourteenth Amendment Challenges

McCarley Maddock

Traditionally, retributive models of criminal justice rely on incarceration as punishment for a crime. Under this theory, punishment should end when the offender is released from prison. Yet, a decentralized web of statutes across the United States undermines this commonsense notion and continues to punish formerly incarcerated persons by denying them access to basic services for re-entry into society such as housing, government benefits, and employment. Specifically, thousands of the formerly incarcerated individuals are barred from working in or pursuing a career of their choice based on state statutes that prohibit entry into a given profession based on criminal history. Around the country, people who have served their prison sentences and repaid their debts to society face “permanent punishments written into law.” Unlike fines or prison time, these collateral consequences “tend to last indefinitely, long after an individual is fully rehabilitated.”[1] For the more than 600,000 offenders released from state and federal prisons each year,[2] the long-term consequences of their convictions do not disappear, even as the prison gates open.

These statutes, often called barrier crime laws or collateral consequence regimes, have remained on the books, in part, because the constituency they affect— those with criminal convictions or arrests— remains politically marginalized.[3] Further, the state laws that limit opportunities for the formerly incarcerated “are notoriously difficult to track down and understand.” With a renewed interest in criminal justice reform emerging across the country, collateral consequence regimes have started to receive increased attention.[4] With more than 44,000 different collateral consequence laws in existence, states deny the formerly incarcerated a wide range of civil liberties––barring reentry into the workforce with licensing regimes and withholding the right to vote. In total, these laws create a sweeping deprivation of rights touching the lives of nearly seventy million Americans. Collateral consequence regimes raise serious constitutional questions under the Fourteenth Amendment. Specifically, this Note considers the potentially unconstitutional nature of collateral consequences in occupational licensing under a Fourteenth Amendment analysis. In doing so, this Note will proceed in three parts. Part I outlines the Supreme Court’s jurisprudence on the individual’s “right to work” and considers the likely standard of review the courts will use to analyze these occupational barrier laws. Thereafter, Part II will examine historical challenges to collateral consequence regimes and will provide examples of current challenges to collateral consequence employment schemes. Part III introduces a workable standard for judicial review of collateral consequences laws, which Part IV advocates implementing.

Link to Note