In Search of a Second Chance: Channeling BMW v. Gore and Reconsidering Occupational Licensing Restrictions

In the early1980s, Mr. Harry Darks and his partner Andre Milton applied for a license to operate a dance hall in Cincinnati. They were to call it “London Hall.” The hall was to operate as a disco club on weekend nights between 11:00 pm and 5:00 am. Liquor licenses were not available for those hours and as stated in the record the hours were purposefully chosen by Darks and Milton so as to avoid competing with other halls and clubs that did serve liquor. To Mr. Darks’ surprise, the City of Cincinnati summarily denied him the license to operate the hall. The reason underlying the denial was that Mr. Darks had been previously convicted of two prior felonies to which he pled guilty. The Court of Appeals for the Sixth Circuit decided that Cincinnati’s policy of wholesale denial of licenses to convicted felons was constitutionally permissible. The Sixth Circuit determined that Mr. Darks’s occupational freedom was permissibly restricted.Six years later, Dr. Ira Gore purchased what he believed was a brand new BMW luxury sedan. Soon thereafter, he took the car to “Slick Finish,” a car detailer, for the purposes of making his new BMW look “snazzier than it normally would appear.” The owner of the detailing company, Mr. Slick, noticed that the car had been repainted. Feeling cheated, Dr. Gore sued BMW in which he alleged that BMW had defrauded him by failing to disclose that the car had been repainted. After trial, the jury found BMW liable for $500,000 in compensatory damages and granted Dr. Gore $ 4 million in punitive damages which was later reduced to $2 million dollars by the Alabama Supreme Court. In 1996, the United States Supreme Court determined that the $2 million punitive damages award was “grossly excessive” and that BMW did not receive fair notice of the severity of the penalty that BMW could face for violating the Alabama statute. For the Court, “[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate[d] that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a state may impose.” After fashioning a three part test to evaluate the “fairness” of the judgment, the Court, per Justice Stevens, invalidated the award. BMW’s millions were now safe.Unlike in BMW, Mr. Darks was not permitted to participate in the American economy thereby depriving him of potential earnings. Mr. Darks was disqualified strictly on the basis of his prior felony convictions. There was no hearing, nor was there any opportunity given to Mr. Darks to rebut Cincinnati’s presumption that felony convictions demonstrate a lack of moral integrity and disrespect for the law on the part of the individual. Even if he were given the chance, the irrebuttable presumption doctrine would offer him no relief as the United States Supreme Court has reasoned away any protection under due process. Mr. Darks was also not entitled to proportionality review balancing his crimes, non-violent drug offenses against the potential lifetime licensing disqualification. Moreover, there was no pragmatic consideration of Mr. Dark’s practical ability to “know” or have “fair notice” of potential state penalties and the harshness of them that attach to the assigned state status of “felon.” In other words, how was Mr. Darks to know that because of his past felonies he would be stricken in the future from participating in the economy? Trial courts are not constitutionally required to include a warning of the employment consequences of conviction during a plea colloquy. Neither is defense counsel mandated to warn her client of these penalties. Is the offender to “just know” that these restrictions and disqualifications exist by virtue of their being on the proverbial “books”? If so, then why did the Court find in favor of BMW?This article urges a reconsideration of Herbert Wechsler’s theory of neutral principles in constitutional jurisprudence and judicial review. Wechsler understands a court’s judgment as not only addressing the immediate issue in the case but as transcending the immediate result through its generality and neutrality so as to be applicable in other situations. Using Wechsler’s theory of “neutral principles,” this article seeks to apply recent Supreme Court jurisprudence in the area of punitive damages to that of occupational licensing restrictions based strictly on a felony conviction. By using the framework constructed to evaluate the constitutionality of large punitive damages awards and applying those principles to occupational licensing statutes, it becomes clear that many occupational licensing statutes disqualifying those with a prior felony conviction are constitutionally suspect particularly in the context of those offenders that plead guilty and are convicted of committing a non-violent offense. In an era of mass incarceration, historically high rates of criminal recidivism, and outrageous government expenditures on crime and punishment a focus on the occupational and employment opportunities of ex-offenders translates into taxpayer savings, an increase in state and federal revenue, and a more productive citizenry. Normatively speaking, with the Court protecting the multinational, multi-billion dollar BMW Corporation from a “grossly excessive” punitive damages award it only makes sense that it would protect the under-educated, under-privileged, and the most politically vulnerable of the American populace.The argument advanced in this Article is by no means perfect but it does offer a different paradigm in which to situate the current discourse surrounding collateral consequences of conviction generally and occupational licenses specifically. What this article does do is call the Court on the carpet regarding its due process jurisprudence and the application of the neutral principles epistemology in today’s Court judgments. This argument adds to the literature by situating the problem in context and looking for a real solution with promise of success. The way in which scholars appreciate constitutional challenges must be pragmatic and address practical realities. By advancing this framework, scholars will be calling for the Court to apply its doctrine even-handedly to both real people and multi-billion 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. In the fight for second chances, it is a game of inches.