Tuesday, June 15, 2021


Article Index

V. The Challenge

A. Substantive Due Process Analysis

      In light of the principles and framework crafted in BMW, many occupational licensing restrictions should be found violative of due process and therefore invalid. This is not to say that in all situations occupational licensing restrictions will be found unconstitutional. But in the context of an offender who pleads guilty to a low-level, nonviolent crime, it appears elementary that in most circumstances a reviewing court will find not only a fair-notice violation but also that the civil penalty is unreasonable and grossly excessive.

      1. Fair Notice

      Regarding notice, it is reasonable to say that many offenders pleading guilty to offenses do not receive adequate notice that their criminal conduct will trigger a variety of civil penalties. Using the principles established in BMW to evaluate fair notice, ex-offenders do not have notice that their underlying criminal conduct will set in motion specific occupational licensing restrictions and that the severity of the restrictions are manifested in indeterminate eligibility, potential lifetime ban, and exclusion from a major economic sector of society.

      As mentioned earlier, there are over 38,000 civil consequences of conviction nationwide, averaging 700 per jurisdiction. Approximately 65% of these penalties are employment related. These consequences of conviction are civil penalties that attach by virtue of a felony conviction. Although not frequently visited as a constitutional issue for the Supreme Court, the existing legal treatment of these penalties is semantic. It appears from current legal doctrine that the nomenclature of “collateral consequences” puts these penalties outside of the constitutional reach of plea colloquies and, in many instances, the advice given by defense counsel in a criminal case. Although a plea of guilty must be at least voluntary and knowing to satisfy guaranteed protections under due process, collateral consequences of a conviction are typically not a penalty criminal defendants are constitutionally required to receive notice of through counsel or the trial court during a plea. Given this, most ex-offenders will not receive fair notice of collateral consequences due to the sheer volume of statutes and regulations disqualifying this group from obtaining licenses and employment opportunities. Furthermore, this particular demographic is undereducated, overcriminalized, and the most politically vulnerable group in American society today.

      2. Three Guideposts

      Under the BMW framework, cases concerning occupational licensing restrictions based on nonviolent convictions may be challenged successfully. Evaluating the first guidepost, a trial court would determine the degree of criminal reprehensibility or blameworthiness underlying the defendant's conduct. Here, the more dangerous and frequent the defendant's conduct, the more liability society will assume. In BMW, the Court quoted proportionality language from the Eighth Amendment Supreme Court case of Solem v. Helm, “non-violent crimes are less serious than crimes marked by violence or the threat of violence.” This quotation is important for two reasons: (1) it goes directly to the heart of the issue in this guidepost, namely that nonviolent crimes are less severe than violent crimes and should therefore be analyzed as less reprehensible, and (2) it freely utilizes dicta from the punishment cases to evaluate the fairness of punitive damages, which essentially formulated a neutral principle--a hybrid opinion composed of civil and criminal Supreme Court precedent. It created a flexible premise applicable in a number of constitutional questions. The Court also asserted that economic harm is less reprehensible than “indifference to or reckless disregard for the health and safety of others.” With this, it follows that economic harm is not equivalent to harms that are violent and reckless or that disregard the health and safety of others.

      Assessing the second guidepost, the ratio of the severity of the consequences on the individual to the actual and potential harm on victims and potential victims, requires proportionality review. This notion is easily translated. In the case of nonviolent offenders, the harm stemming from statutory and regulatory exclusions on the ex-offender may outweigh the actual and potential harm on victims and potential victims. As a general matter, many nonviolent offenses are considered victimless crimes and so harm to victims would be low. Of course, there are those extreme cases where a nonviolent crime causes substantial economic harm to a real victim, such as in Ponzi schemes and identity theft. For purposes of this thesis, however, the focus is on run-of-the-mill, low-level, nonviolent drug offenses. Utilizing the constitutionally tolerated ratios set forth by the Court in State Farm and Exxon, a nonviolent felony conviction that triggers a lifetime occupational licensing restriction would be constitutionally impermissible. A durational requirement prior to being considered eligible for a license may be allowed. However, the duration ought not exceed single-digit ratios because the Court may find such government action grossly excessive.

      Finally, the third BMW factor, the way in which the punitive damages award compares with criminal or civil penalties that have been or could be imposed for comparable misconduct, allows for great flexibility. Comparisons could be made with the same jurisdiction, different American jurisdictions, and foreign jurisdictions on the issue. Collateral consequences vary across state lines as states administer them differently, apply different time limits, and have a different administrative protocol for the restoration of rights. Cross-nationally comparing occupational licensing statutes would benefit any claim.

      a. A Hypothetical--Wisconsin and Private Security Guards

      To better illustrate how a challenge to an automatic license disqualification would be levied and possibly analyzed, take the following hypothetical based on the Wisconsin private detective, investigator, and security personnel statute. This section discusses the arguments that could be made by challengers as well as those that the state would likely put forth were a challenge brought. The statute states, “An individual who has been convicted in this state or elsewhere of a felony and who has not been pardoned for that felony is not eligible for a license under this section.” The statute also prohibits individuals convicted of unpardoned felonies from working for a private detective agency that does business in Wisconsin as a supplier of private security guards in a variety of different contexts including patrolling businesses, stadiums, hospitals, colleges, and similar activities.

      I chose this statute for a number of reasons. First, the statute in its current form has been in existence since 1996. Prior to that, the statute included a five-year waiting period for those convicted of a felony to become eligible for the license. This demonstrates the way the legislature intentionally excluded unpardoned ex-offenders from this occupation for a lifetime rather than a period of time. It is also important that this statute is automatic upon conviction. There is no first-offender exception to the rule. In other words, once a felony conviction is announced and recorded, an individual is automatically ineligible for this license unless pardoned by the governor. In Wisconsin, there have been a total of fifty-two pardons since 2001, excluding the eighty-five pardons granted by Governor Doyle in 2010 after announcing he would not run for reelection. In addition, this statute is the classic blanket prohibition against felony offenders, meaning that there is no distinction between classifications of crimes in determining eligibility. An individual convicted of robbery is treated the same as an individual convicted of possession of a narcotic. Moreover, the statute and accompanying regulations fail to mention any right to judicial review upon agency denial. There is also no provision in the statute calling for review by an administrative law judge. Instead, eligibility decisions are within the exclusive discretion of the department. The statute also does not require any relationship between the crime of conviction and the job duties of a security guard or private detective. The actual occupation of private security guard is critical to the analysis because these jobs form a major employment sector in the national and local economies, and are expected to grow. I chose this statute due to the prevalence of jobs available in this sector of the economy and the range of employment opportunities this license covers. Employment in this industry skyrocketed after September 11th, and in Wisconsin specifically it is projected that this sector will continue to grow despite the recession.

      In this hypothetical, the challenger is a male convicted of simple possession of oxycodone. In Wisconsin, an individual pleading guilty for first time simple possession of oxycodone is guilty of a Class I felony. An individual convicted of a Class I felony is exposed to “a fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both.” It is the lowest level felony in the Wisconsin criminal classification system. For purposes of this hypothetical the challenger is a first-offender with no prior arrests who received a sentence of six months in prison plus $250 in fines. The sentence was completed five years ago.

      After applying and being denied a license without a hearing, the individual files a claim in state court (or federal) against the Commissioner of the Department of Regulation and Licensing challenging the denial of the license. The primary allegation in the complaint asserts a due process violation insofar as he was denied fair notice. More specifically, the petitioner argues that he is being denied a liberty interest in the opportunity and ability to engage in a common occupation without constitutionally sufficient notice of the exposure to penalties and the severity of those penalties. The complaint further alleges that the department's licensing requirement is grossly disproportionate and excessive in relation to the underlying criminal offense. A complaint should also include allegations of a violation of any codified employment discrimination statutes. In the case at bar, the challenger need not include an allegation of a violation of section 111.31(1)-(3) of the Wisconsin Fair Employment Act (WFEA) prohibiting discrimination against an individual with a felony conviction. This is because WFEA contains an exception to the rule in section 111.31, which directly states that WFEA is inapplicable to claims of discrimination in the licensing of private security persons.

      Generally, the complaint must also assert important facts and supporting information. The pleadings must include the conviction, the circumstances surrounding the conviction, the sentence issued, and the duration of time that has elapsed since the sentence was completed. These facts are necessary to show the nature and gravity of the offense so as to demonstrate the lack of a relationship between the underlying criminal conduct and the excessiveness of the statute. Such facts may also demonstrate the likelihood of reoffending. The claim must also include information regarding the number of jobs available to the holder of a private security guard license in the national and state economies and the expected growth of these jobs to establish the magnitude of the lifetime loss of opportunity.

      The analysis begins by evaluating the “degree of reprehensibility of the defendant's conduct.” This assessment is subjective. However, BMW gives a reviewing court some guidance. First, the Court in BMW stressed the principle “that punishment should fit the crime” and that penalties issued should “reflect the enormity of his offense.” Thus, on the scale of blameworthiness simple possession of a Schedule II narcotic is marginally reprehensible because the harm caused is (a) theoretical and (b) without a victim. This is reflected by the classification of the crime as a Class I felony. The first guidepost also considers whether the defendant is a recidivist. In this hypothetical the challenger is not a recidivist, making him still only minimally blameworthy. If he were a recidivist with similar nonviolent offenses, the number of convictions would become relevant to his degree of reprehensibility. The result of the evaluation of the first guidepost demonstrates that the defendant's conduct is minimally reprehensible.

      Next, the Court assesses the ratio of the severity of the consequences on the individual versus the actual and potential harm on victims and potential victims. The second guidepost encompasses a strict proportionality assessment. The severity of the statute, namely barring an entire class of people from the opportunity to engage in a common occupation such as a private security guard for an indefinite duration, is quite severe. This type of license is necessary for a number of jobs in the national economy including private security guards employed by a number of state agencies, different private contracting agencies, retail and department stores, parking lots, and the like. The individual's offense, possession of an illegal substance, is minimal. The crime itself does not have a human victim or potential human victim. The only victim is society, which suffers on a theoretical level from the offender's breach of the criminal law in that specific jurisdiction. In assessing the challenger's criminal sentence and employment sanctions, it is obvious that the ratio exceeds double digits. Strictly, the criminal sentence lasted six months and the Wisconsin statute requires a lifetime ban. This ratio clearly exceeds the double-digit threshold, obviously beyond the “outermost limits of the due process guarantee.” When reminded of the degree of reprehensibility of the challenger, the irrationality of the statute crystallizes.

      Finally, the third factor, how the punitive damages award compares with criminal or civil penalties that have been or could be imposed for comparable misconduct, allows for cross-jurisdictional analysis. Comparing the criminal sanctions the individual would receive is an exercise in futility because he already received the criminal penalty permitted by statute in that jurisdiction. The individual is challenging the civil disqualification stemming from his conviction, thus, a fair comparison would be with different state licensing requirements for the same license. In comparing a neighboring state's statutory requirements, Illinois allows for some leeway. In Illinois, a felony conviction is not an absolute bar to acquiring the license, and completed sentences over ten years old are not considered in the determination. In Connecticut, when an individual is denied a private detective or security guard license based on a felony conviction, he is statutorily permitted to appeal the issue to the Commissioner. The comparison could extend across the fifty states to demonstrate the severity of the Wisconsin statutory licensing requirement. From this analysis it appears the licensing law is excessive.

      While the BMW framework has been criticized both legally and normatively, it does promote a higher level of scrutiny that may be applied in other contexts. After assessing the Wisconsin statute in light of a nonviolent, minimally reprehensible offense, it becomes apparent that the statute may be vague, too burdensome, overinclusive, and clearly excessive in many cases. In this vein, it is important that courts ensure evenhandedness in penalties levied by states for punishable criminal conduct. At the very least, courts ought to invoke principles of proportionality to maintain a fair and ordered system of justice.

      3. State Arguments

      The state likely would argue that it has a legitimate interest in preventing criminals from engaging in occupations affecting public welfare and safety. In essence, the state would argue for a presumption that convicted felons are untrustworthy, unlikely to rehabilitate, and lack good character. The state's argument would most likely fail for numerous reasons.

      First, while it is true that the state has a duty to protect its citizens from those who endanger the public safety and welfare in the context of employment, it does not have a legislative mandate to enact blanket disqualifications on an entire class of persons without at least a reasonable relation to the interest the state desires to protect. This is equal protection and due process 101. Activities associated with a private security guard include patrolling premises to maintain order, ensuring compliance with applicable rules and regulations, warning and ejecting troublemakers, guarding against theft, and assisting management. It begs the question, what is the relationship between these activities and possession of two Percocet pills? Again, our challenger was not convicted of manufacture, distribution, or sale, nor was he convicted of DUI or anything similar. It is difficult to find a relationship between possession and activities associated with the license.

      Second, the state makes no distinction in the nature and degree of felony convictions. For the state, an individual convicted of murder in the first degree faces the same disqualification as the individual convicted of possessing one and one-half ounces of marijuana or even two Percocet pills. The two classes of crime are treated the same. This is so even though the state has enacted different criminal penalties for the two crimes, and the defendant convicted of murder or robbery causes more harm to society and is thus more criminally culpable. Moreover, an across-the-board exclusion fails to account for individual characteristics such as age, subsequent employment, and educational experience, which are factors that have been statistically shown to reduce criminal recidivism.

      Finally, the irrationality of the statute is crystallized when compared to the licensure requirements to practice medicine or law, which are professions with greater connections to the public welfare and safety. In many jurisdictions a felony conviction is not an absolute bar to the practice of law, and there is no bar to the practice of medicine in Wisconsin based strictly on a felony conviction.