While the fate of ex-offenders is not at the top of the legislative priority list of state governments or Congress, expenditures on corrections is gaining public attention. We as a country can no longer afford to pay for the imprisonment of nonviolent offenders. One method to reduce the price tag is to prevent recidivism through occupational opportunity. With the ever expansive, overinclusive web of collateral consequences triggered by conviction, such opportunity is dangerously low, forcing states to continue to pay the price for individual recidivism. Understanding that support for repealing professional licensing restrictions for felons is a bullet in any legislators' political future, the courts may have to step in to push state legislators in the direction of repealing, or at the very least modifying, these disqualifications so that ex-offenders may support themselves, their families, and stay out of state and federal jails and prisons.
Although jurisprudence in the area of collateral consequences is sparse and at times contradictory, the Supreme Court has developed a framework that will lend itself to a fair evaluation of occupational licensing restrictions in the new millennium. This BMW framework, although heavily criticized, is a starting point in the analysis of the civil penalties associated with criminal convictions. Hopefully, the argument advanced in this Article offers a different paradigm in which to frame the current discourse surrounding collateral consequences of conviction generally and occupational licenses specifically. What this Article does is utilize a heavily criticized Supreme Court opinion in a way that could help millions of American citizens. It also encourages the application of the neutral-principles epistemology in today's Court judgments. Scholars and advocates may look for next steps and additional challenges to occupational licensing restrictions rooted in constitutional law. Moving forward, it is important to consider that this demographic lacks access to many of the resources and institutional understanding that facilitates reforms necessary to ensure due process is respected and administered even-handedly.
This Article, if nothing else, hopefully adds to the reentry conversation by situating the problem in context and looking for a real solution with promise of success. Scholars' approach to constitutional challenges must be pragmatic and address practical realities. By advancing this framework, scholars will call for the Court to apply its doctrine evenhandedly to both real people and multibillion-dollar corporations. It is a stepping stone on a platform of reform necessary to reintegrate the most left behind in American society and save taxpayer dollars in a stale economy. The fight for second chances is proving to be a game of inches.
Associate Professor of Law, Indiana University Robert H. McKinney School of Law.