Common Law Marriage in the United States

Posted in Law on 20160828 by Avenging Sword

Does any state in the United States recognize common law marriage?[1]  The answer to this question is somewhat complex.

  1. Colorado,[2] Iowa,[3] Kansas,[4] Montana,[5] Oklahoma,[6] Rhode Island,[7] South Carolina,[8] Texas,[9] and the District of Columbia[10] recognize common law marriages regardless of when they were contracted.
  2. Utah legalized common law marriage in 1987, but also accords validity to common law marriages initiated before, and continued through, that date.[11] However, the state does not recognize any common law marriage that both started and ended before 1987.[12]
  3. New Hampshire only recognizes common law marriages for purposes of inheritance, and accords them no validity in other contexts (e.g., divorce law).[13]
  4. The following states each abolished common law marriage on a specified date, but still recognize any such marriage contracted before that date.
State Abolition Date
Alabama January 1, 2017[14]
Florida January 1, 1968[15]
Georgia January 1, 1997[16]
Idaho January 1, 1996[17]
Illinois June 30, 1905[18]
Indiana January 1, 1958[19]
Michigan January 1, 1957[20]
Minnesota April 26, 1941[21]
Mississippi April 5, 1956[22]
Nebraska 1923[23]
Nevada March 29, 1943[24]
New Jersey December 1, 1939[25]
New York April 29, 1933[26]
Ohio October 10, 1991[27]
Pennsylvania January 1, 2005[28]
South Dakota July 1, 1959[29]
  1. The remaining states do not recognize common law marriage.[30]


[1] I am referring to common law marriages performed in-state.  Even a state that voids in-state common law marriages may still recognize common law marriages contracted in other states.  See, e.g., Smith v. Mangum, 155 Ariz. 448, 450 n.1 (Ct. App. 1987) (“Arizona does not recognize a common law marriage unless it was entered into in a state that authorizes common law marriages.”); Farah v. Farah, 429 SE 2d 626, 629 (Va. Ct. App. 1993) (citation omitted) (“Virginia does not recognize common-law marriages where the relationship is created in Virginia. Virginia does recognize a common-law marriage that is valid under the laws of the jurisdiction where the common-law relationship was created.”).

[2] See Colo. Rev. Stat. § 14-2-109.5 (2016) (imposing certain conditions on common law marriage); People v. Lucero, 747 P.2d 660, 663 (Colo. 1987) (quoting Klipfel’s Estate v. Klipfel, 92 P.26, 28 (Colo. 1907) (quoting Taylor v. Taylor, 10 Colo.App. 303, 305 (1897))) (“[I]n this state a marriage simply by agreement of the parties, followed by cohabitation as husband and wife, and such other attendant circumstances as are necessary to constitute what is termed a common-law marriage, may be valid and binding.”).

[3] See In re Estate of Fisher, 176 N.W.2d 801, 804 (Iowa 1970) (“Iowa has recognized common-law marriage for well over a century.”); In re Stopp’s Estate, 57 N.W.2d 221, 222 (Iowa 1953) (“[W]e are not persuaded common-law marriages have never been recognized in Iowa, or that if they have been our previous decisions should be overruled.”).

[4] See Kan. Stat. Ann. § 23-2502 (2015) (“The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage contract is under 18 years of age.”); Anguiano v. Larry’s Electrical Contracting, 241 P.3d 175, 178 (Kan. Ct. App. 2010) (“To establish a common-law marriage in Kansas, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife.”).

[5] See Mont. Code Ann. § 40-1-403 (2015) (“Common-law marriages are not invalidated by this chapter.”); In re Estate of Ober, 62 P.3d 1114, 1115 (Mont. 2003) (“The State of Montana recognizes common-law marriages.”).

[6] See Davis v. State, 103 P.3d 70, 82 (Okla. Crim. App. 2004) (“To establish a valid common law marriage, there must be evidence of an actual mutual agreement between the spouses to be husband and wife, a permanent relationship, an exclusive relationship — proved by cohabitation as man and wife, and the parties to the marriage must hold themselves out publicly as man and wife.”).

[7] See Sardonis v. Sardonis, 261 A.2d 22, 24 (R.I. 1970) (citation omitted) (“[R]espondent attacks the trial justice’s finding that he and petitioner were validly married at common law. Such a marriage has long been recognized in this state.”).

[8] See S.C. Code Ann. § 20-1-360 (2016) (“Nothing contained in this article shall render illegal any marriage contracted without the issuance of a license.”); State v. Ward, 204 S.C. 210, 216 (1944) (“A common-law marriage is valid in this State . . . . [S]uch marriage is not void because the formalities prescribed by statute concerning the procurement of a license and solemnization, have not been observed.”).

[9] See Tex. Fam. Code Ann. § 2.401(2) (2015) (“[T]he marriage of a man and woman may be proved by evidence that . . . the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.”); Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (citation omitted) (“Common law marriages have been recognized in Texas since 1847. From this beginning, Texas has rejected the necessity of ritual formalities to establish the marriage relationship.”); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978) (citations omitted) (“The validity of the common-law marriage has always been recognized in Texas. It is authorized by statute.”).

[10] See Coates v. Watts, 622 A.2d 25, 27 (D.C. 1993) (“The District of Columbia has long recognized common law marriages.”); Hoage v. Murch Bros. Const. Co., 50 F.2d 983, 986 (D.C. Cir. 1931) (“[T]he decision of the lower court that common-law marriages in the District are invalid is not supported by law, and is wrong.”).

[11] See Utah Code § 30-1-4.5(1) (2016) (“A marriage which is not solemnized according to this chapter shall be legal and valid . . . .”); Whyte v. Blair, 885 P.2d 791, 793 n.2 (Utah 1994) (noting that prior decisions “considered the validity of a common law marriage in Utah prior to 1987. Because such marriages were prohibited prior to 1987, they were not valid. By contrast, in the present case the relationship that possibly establishes a common law marriage existed well after 1987.”); Bunch v. Englehorn, 906 P.2d 918, 920 n.2 (Utah Ct. App. 1995) (“[R]elationships that began and ended prior to 1987 were not valid, since common-law marriages were not recognized in Utah prior to the enactment of section 30-1-4.5. Because the parties’ relationship indisputably lasted beyond 1987, the statute could apply in the present case.”).

[12] See Layton v. Layton, 777 P.2d 504, 505 (Utah Ct. App. 1989) (footnote omitted) (“The complaint in this case was filed in 1983, about four years before section 30-1-4.5 was enacted. . . . [T]hat section . . . has only prospective, and not retroactive, effect. Thus, the trial court mischaracterized the Laytons’ relationship as a marriage.”).

[13] See N.H. Rev. Stat. Ann. § 457:39 (2016) (“Persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of 3 years, and until the decease of one of them, shall thereafter be deemed to have been legally married.”); S. v. S., 121 N.H. 96 (1981) (denying a petition for alimony and child support because “the status of ‘common law’ spouse obtains only as to the survivor of two people who” complied with this provision.).

[14] Mattison v. Kirk, 497 So.2d 120, 122 (Ala. 1986) (citations omitted) (“Common law marriages are valid in Alabama, and are co-equal with ceremonial marriages.”); H.B. 332, Reg. Sess. § 1(a) (Ala. 2016) (enacted) (“No common-law marriage may be entered into in this state on or after January 1, 2017.”); id. § 1(b) (“An otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state.”).

[15] Fla. Stat. § 741.211 (2016) (“No common-law marriage entered into after January 1, 1968, shall be valid”); Williams v. Dade County, 237 So.2d 776, 777 n.1 (Fla. Dist. Ct. App. 1970) (“Common law marriages are recognized in this state if their inception is prior to January 1, 1968.”).

[16] Ga. Code Ann. § 19-3-1.1 (2015) (“No common-law marriage shall be entered into in this state on or after January 1, 1997. Otherwise valid common-law marriages entered into prior to January 1, 1997 . . . shall continue to be recognized in this state.”); King v. Lusk, 633 S.E.2d 350, 353 (Ga. Ct. App. 2006) (“Although common-law marriages entered into on or after January 1, 1997, are not recognized in Georgia, common-law marriages entered into prior to January 1, 1997, are not affected and continue to be recognized. The period of Lusk and Herron-King’s relationship began years before 1997.”).

[17] Idaho Code § 32-201(2) (2015) (“The provisions . . . requiring the issuance of a license and a solemnization shall not invalidate any marriage contract in effect prior to January 1, 1996, created by consenting parties through a mutual assumption of marital rights, duties or obligations.”); id. § 32-301 (“On and after January 1, 1996, any marriage contracted or entered into in violation of the provisions of this title shall be void.”); Wilkins v. Wilkins, 48 P.3d 644, 649 (Idaho 2002) (“Common law marriages were recognized in Idaho prior to January 1, 1996. . . . [A] valid common law marriage may not be formed after that date.”); Metro. Life Ins. Co. v. Johnson, 645 P.2d 356, 359 (Idaho 1982) (“We note that Idaho is among the dwindling minority of states which continue to recognize common law marriage.”).

[18] 750 Ill. Comp. Stat. 5/214 (2016) (“Common law marriages contracted in this State after June 30, 1905 are invalid.”).

[19] Ind. Code § 31-11-8-5 (2015) (“A marriage is void if the marriage is a common law marriage that was entered into after January 1, 1958.”); In re Estate of Parrish, 293 N.E.2d 62, 63 (Ind. Ct. App. 1973) (noting that this “statute . . . became effective January 1, 1958. Thus, in the instant case the defendant, as proponent of the common law marriage, had to establish that such marriage existed prior to the effective date of the statute.”).

[20] Mich. Comp. Laws § 551.2 (2016) (“Consent alone is not enough to effectuate a legal marriage on and after January 1, 1957.”); Tigner v. Tigner, 90 Mich. App. 787, 789 (1979) (“Although MCL 551.2; MSA 25.2 invalidated common-law marriages entered into on or after January 1, 1957, this in no way affects the validity of a valid common-law marriage entered into before that date.”).

[21] Minn. Stat. § 517.01 (2015) (“A lawful civil marriage may be contracted only when a license has been obtained . . . and when the civil marriage is contracted in the presence of two witnesses and solemnized  . . . . Marriages subsequent to April 26, 1941, not so contracted shall be null and void.”).

[22] Miss. Code. § 93-1-15(2) (2015) (“Nothing contained in this section shall be construed to affect the validity of any marriage, either ceremonial or common law, contracted prior to April 5, 1956.”); Pickens v. Pickens, 490 So.2d 872, 875 (Miss. 1986) (“Cohabitation which had not ripened into a common law marriage prior to April 5, 1956, is wholly ineffective to vest marital rights in either party thereto.”).

[23] Neb. Rev. Stat. § 42-104 (2016) (“No marriage hereafter contracted shall be recognized as valid unless such license has been previously obtained and used within one year from the date of issuance and unless such marriage is solemnized by a person authorized by law to solemnize marriages.”); Bourelle v. Soo-Crete, 87 N.W.2d 371, 376 (Neb. 1958) (“A common-law marriage is not valid in this state unless entered into prior to the adoption of section 42-104, R.R.S. 1943, in 1923.”).

[24] Nev. Rev. Stat. § 122.010(2) (2016) (“The provisions of subsection 1 requiring solemnization shall not invalidate any marriage contract in effect prior to March 29, 1943, to which the consent only of the parties capable in law of contracting the contract was essential.”).

[25] N.J. Stat. § 37:1-10 (2015) (“Nothing in this chapter shall be deemed or taken to render any common law or other marriage, otherwise lawful, contracted before December first, nineteen hundred and thirty-nine, invalid by reason of the failure to take out a license as herein provided.”).

[26] In re Benjamin, 34 N.Y.2d 27, 30 (1974) (citation omitted) (“Although common-law marriages were abolished in New York on April 29, 1933, common-law marriages contracted by competent parties prior to that date are recognized and remain valid.”); People v. Massaro, 288 N.Y. 211, 215 (1942) (“a common law marriage . . . if contracted before April 29, 1933 . . . is just as valid as a solemnized marriage.”).

[27] Ohio Rev. Code § 3105.12(B) (2016) (“On and after October 10, 1991 . . . common law marriages are prohibited in this state . . . . Common law marriages that occurred in this state prior to October 10, 1991 . . . remain valid on and after October 10, 1991.”); State v. Phelps, 100 Ohio App.3d 187, 192 (1995) (“Common-law marriages that occurred prior to October 10, 1991 remain valid unless terminated by death, divorce, dissolution of marriage, or annulment.”).

[28] 23 Pa. Cons. Stat. § 1103 (2016) (“No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.”); Moser v. Renninger, 40 A.3d 156, 159 n.2 (Pa. Super. Ct. 2012) (“Wife alleged the parties entered into a common-law marriage on June 8, 1985, and therefore, the plain language of the amended statute does not prohibit a lawful common-law marriage in the case sub judice.”).

[29] S.D. Codified Laws § 25-1-29 (2016) (“Marriage must be solemnized, authenticated, and recorded as provided in this chapter provided, however, that noncompliance with its provisions does not invalidate any lawful marriage consented to and subsequently consummated prior to July 1, 1959.”); In re Estate of Miller, 243 N.W.2d 788 (S.D. 1976) (affirming common law marriage contracted before 1959).

[30] See Patty Funaro, Leg. Serv. Agency, Legislative Guide to Marriage Law 11, 34-41 (2005).

Questions Regarding the American Solidarity Party

Posted in Poli-ticks on 20160730 by Avenging Sword

A friend of mine has recently joined the American Solidarity Party (ASP).  Being mildly curious about this organization – of whose existence I was, until recently, unaware – I decided to peruse its platform to see what it was all about.  My reading of this document left me with several questions.  These first two concerned issues on which the ASP’s platform was apparently silent.

  1. What is the ASP’s position (if any) on gun-related issues? E.g., Concealed carry, universal background checks, gun registration, assault weapons bans?  What about proposals to expand restrictions on firearms possession by certain persons (e.g., DUI offenders, persons on terror watchlists, “gun violence restraining orders”).
  2. Does the ASP consider birthright citizenship for U.S.-born children of illegal aliens, transient aliens, and/or aliens generally to be constitutionally-mandated by the Fourteenth Amendment’s Citizenship Clause?
  3. In the ASP’s view, what role (if any) should the original public meaning of the Constitution play in constitutional law?

These other questions concerned particular aspects of the platform (in quotation marks):

  1. We oppose conscription into the armed services and other forms of compulsory government service . . . .” Does this include jury duty?
  2. We will work to restrict the legal construct of ‘personhood’ for organizations and corporations.” What sort of “restrictions” on corporate personhood does the ASP favor?
  3. We advocate a tax shift from earned income (wages and interest) to unearned income (economic rent).” How is “unearned income” defined; does it include dividends, interest, rental income from rental properties?  What magnitude of tax rates are we talking about?
  4. We advocate . . . legal accountability for the misrepresentation of facts in political advertising.” What form would this “accountability” take, and would it be consistent with existing First Amendment case law?
  5. We insist on legal protection for occupational safety . . . .” How is this different from what OSHA currently does?
  6. We oppose government censorship of the media and the internet.” Does “censorship” include laws prohibiting obscenity and child pornography?
  7. We support stricter controls on consumer credit, including limits on interest and regulation of credit-card companies and payday-loan and title-loan stores.” What sort of “regulation” does the ASP favor for credit cards and payday loans?  Besides interest-rate ceilings, what other “stricter controls” does the ASP favor for consumer credit?

DUIs and Gun Possession

Posted in Law on 20160711 by Avenging Sword

In recent years, some have recommended banning gun possession by persons with one or more DUI convictions.[1]  Such recommendations implicitly assume that current federal and state laws largely fail to impose such a ban.[2]  This assumption, however, appears to be incorrect.  In the District of Columbia and every state (except perhaps one), either federal or state law explicitly or implicitly bars gun possession by persons with multiple DUIs.[3]

Although federal law does not explicitly bar DUI offenders from possessing guns, the Gun Control Act of 1968 does impose a “felon gun ban,” which prohibits gun possession by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . .”[4]  By statute, the italicized text excludes “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”[5]  Hence, if a state deems a DUI offense to be either a felony punishable by over a year’s imprisonment or a misdemeanor punishable by over two years in prison,[6] that DUI offense will trigger the federal felon gun ban.

Only in Massachusetts do the penalties for first-time DUI offenders imply disarmament under federal law.  A first DUI in the Bay State is a misdemeanor.[7]  However, it carries a possible penalty of “imprisonment for not more than two and one-half years . . . .”[8]  Consequently, federal law bans gun ownership by anyone convicted of even one DUI in Massachusetts.

Under most other states’ laws, the federal felon gun ban only affects persons with multiple DUI’s.  In four states – Connecticut,[9] Indiana,[10] New York,[11] and Oklahoma[12] – a second DUI triggers this ban.  In the following 23 states, a third DUI required:
















Rhode Island[28]

South Carolina[29]

South Dakota[30]





West Virginia[35]


In these 18 states, the federal felon gun ban takes effect on the fourth DUI:











New Hampshire[46]

New Mexico[47]

North Carolina[48]

North Dakota[49]





In Washington alone, a fifth DUI is required for federal law to bar gun possession.[54]

In Kansas,[55] New Jersey,[56] Pennsylvania,[57] and the District of Columbia,[58] DUI penalties are light enough to avoid triggering the federal felon gun ban.  However, the laws of three of these jurisdictions clearly prohibit gun possession by persons with multiple DUIs.  Such a ban applies to two-time DUI offenders in D.C.,[59] and to three-time offenders in Kansas[60] and Pennsylvania.[61]

In New Jersey, it is unclear whether state law bars gun possession by repeat DUI offenders.  New Jersey law does bar possession of handguns, rifles, and shotguns by any “any person who is presently an habitual drunkard . . . .”[62]  Although a single DUI conviction does not, by itself, satisfy this definition,[63] a history of multiple DUI convictions might do so.  The case most closely on point, State v. Freysinger, stated that someone “who has been found guilty of driving while under the influence of alcoholic beverages on two occasions and has twice pled guilty to the refusal to submit to a breathalyzer test, all within a thirteen year period, might be reasonably described as an habitual drunkard.”[64]  Yet although this language seemingly suggests that “habitual drunkard” encompasses any individual with multiple DUIs, the Freysinger court also supported its habitual drunkenness finding by citing on “defendant’s testimony . . . that . . . at least two times a week, [he] consumed a six pack of beer over the course of an evening,” and “defendant’s admission at the hearing that on two separate occasions he has enrolled in, and participated in, Alcoholics Anonymous.”[65]  Given this reliance on other evidence, it is unclear whether a person with multiple DUI offenses would satisfy the definition of “habitual drunkard” absent such additional corroboration.  If so, then New Jersey law would indeed bar gun possession by repeat DUI offenders.

Thus, as I have long suspended,[66] existing federal and state laws, in combination, already prohibit gun ownership by persons with multiple DUIs, with disarmament extending to three- or four-time DUI offenders in most states.  Whether laws in those states, or at the federal level, should be amended to instead disarm people with one or two DUIs is, of course, a separate question.

[1] See S.B. 755, 2013-2014 Leg., Reg. Sess. § 2(b)(7) (Cal. 2013) (imposing a 10-year ban on gun possession by anyone convicted of two DUI’s in 3 years); Consortium for Risk-Based Firearm Policy, Guns, Public Health, and Mental Illness: An Evidence-Based Approach for Federal Policy 16 (2013) (“Individuals convicted of two or more DWI or DUIs in a period of five years should be prohibited from purchasing and possessing firearms for at least five years.”); Jeffrey W. Swanson et al., Guns, Impulsive Angry Behavior, and Mental Disorders: Results from the National Comorbidity Survey Replication (NCS-R), 33 Behavioral Sci. & Law 199, 210 (2015) (“[G]un restrictions based on criminal records of . . . DUI/DWIs . . . could be a more effective – and politically more palatable – means of limiting gun access in this high-risk group.”); Garen J. Wintemute, Alcohol Misuse, Firearm Violence Perpetration, and Public Policy in the United States, Preventive Med., Oct. 2015, at 15, 19 (“[O]bjective criteria for firearm access restrictions could include . . . a history of multiple convictions for DUI and other alcohol-related offenses during a specified recent period of time as a marker of alcohol misuse.”); Steve S, Mental Health and Gun Laws, Alexandria (Jan. 21, 2013), (“A person willing to drive a car while intoxicated has demonstrated a lack of regard for the lives of others. They have forfeited the right to own a firearm.”).

[2] See Wintemute, supra note 1, at 18 (“Federal firearm statutes are essentially silent on alcohol. They do not restrict access to firearms by persons who are intoxicated or have a history of alcohol misuse, including prior convictions for alcohol-related offenses.”); id. (citation omitted) (“Only Maryland, Pennsylvania, Indiana, and the District of Columbia have generally restricted firearm acquisition or possession based on specific, quantifiable definitions of alcohol misuse [i.e., numbers of DUI convictions].”).  Note that the Indiana provision to which Wintemute refers was repealed in 2014.  See Act of Mar. 26, 2014, P.L.152-2014, § 2, 2014 Acts of Indiana 1791, 1792; compare Ind. Code § 35-47-2-7(b) (2015) with Ind. Code § 35-47-2-7(b)(3) (2012).

[3] For the purposes of this analysis, “DUI” refers only to the act of driving with a blood alcohol concentration of 0.08, absent aggravating factors such as driving with a minor, or causing injury or death to another person.

[4] 18 U.S.C. § 922(g)(1) (2012).

[5] Id. § 921(a)(20)(B).

[6] See United States v. Boumelhem, 339 F.3d 414, 425-27 (6th Cir. 2003).

[7] Mass. Gen. Laws ch. 274, § 1 (2016), states that “A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.”  Id. ch. 90, § 24(1)(a)(1) ¶ 1 authorizes “imprisonment for not more than two and one-half years” for a first DUI, but not “imprisonment in the state prison for not less than two and one-half years,” as id. ch. 90, § 24(1)(a)(1) ¶ 5 (emphasis added) does for a third DUI.  Hence, a first DUI in Massachusetts is a misdemeanor.

[8] Id. ch. 90, § 24(1)(a)(1) ¶ 1.

[9] See Conn. Gen. Stat. § 14-227a(g)(2)(B) (2015) (2nd DUI in 10 yrs punishable by up to 2 yrs imprisonment); id. § 53a-25(a) (“An offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.”).

[10] See Ind. Code § 9-30-5-3(a)(1) (2015) (2nd DUI in 5 yrs is Level 6 felony); id. § 35-50-2-7(b) (Level 6 felony punishable by up to 2.5 yrs imprisonment).

[11] See N.Y. Veh. & Traf. Law § 1193(1)(c) (2016) (2nd DUI in 10 yrs is class E felony); N.Y. Penal Law § 70.00(2)(e) (2016) (class E felony punishable by up to 4 yrs imprisonment).

[12] See Okla. Stat. 47, § 11-902(C)(2)(b) (2015) (2nd DUI in 10 yrs is felony punishable by up to 5 yrs imprisonment).

[13] See Alaska Stat. § 28.35.030(n) (2015) (3rd DUI in 10 yrs is class C felony); id. § 12.55.125(e)(1) (class C felony conviction is punishable by up to 2 yrs imprisonment “if the offense is a first felony conviction”).

[14] See Ariz. Rev. Stat. § 28-1383(A)(2) & (L)(1) (2016) (3rd DUI in 7 yrs is class 4 felony); id. § 13-702(D) (maximum, “aggravated sentence” for class 4 felony is 3.75 yrs).  Although the possible sentence for a class 4 felony is 1-5 yrs, only the maximum possible sentence matters when determining whether the federal felon ban applies.  See United States v. Hill, 539 F.3d 1213, 1218-21 (10th Cir. 2008); United States v. Murillo, 422 F.3d 1152, 1153-54 (9th Cir. 2005); United States v. Jones, 195 F.3d 205, 206-07 (4th Cir. 1999).

[15] See Del. Code tit. 21, § 4177(d)(3) (2016) (3rd DUI is class G felony punishable up to 2 yrs incarceration).  Id. tit. 21, § 4177(d)(2) authorizes up to 18 months’ imprisonment for a second DUI in 10 yrs, but does not deem that offense a felony; hence that offense is “an unclassified misdemeanor or an environmental misdemeanor or environmental violation,” id. tit. 11, § 4202(b).

[16] See Fla. Stat. § 316.193(2)(b)(1) (2016) (3rd DUI in 10 yrs is third-degree felony); id. § 775.082(3) (third-degree felony punishable by up to 5 yrs’ imprisonment).

[17] See Idaho Code § 18-8005(6) (2015) (3rd DUI in 10 yrs is felony punishable by up to 10 yrs imprisonment).

[18] See 625 Ill. Comp. Stat. 5/11-501(d)(1)(A) & (d)(2)(A) (2016) (3rd DUI is class 4 felony); 730 id. 5/5-4.5-45(a) (class 4 felony punishable by up to 3 yrs imprisonment).

[19] See Iowa Code § 321J.2(2)(c) & (5)(a) (2016) (3rd DUI is class D felony punishable by up to 5 yrs imprisonment).

[20] See La. Rev. Stat. §§ 14:98(D)(3), :98.3(A)(1) (2015) (3rd DUI in 10 yrs punishable by up to 5 yrs imprisonment “with or without hard labor”); id. § 14:2(A)(4) (defining “felony” as “any crime for which an offender may be sentenced to . . . imprisonment at hard labor.”).

[21] See Me. Rev. Stat. tit. 29-A, § 2411(5)(C) (2016) (3rd DUI in 10-yrs is Class C crime); id. tit. 17-A, § 1252(2)(C) (Class C crime punishable by up to 5 yrs imprisonment).

[22] See Md. Code Ann. Transp. § 27-101(a) & (k) (2016) (3rd DUI in 5 yrs is misdemeanor punishable by up to 3 yrs imprisonment).

[23] See Mich. Comp. Laws § 257.625(9)(c) (2016) (3rd DUI is felony punishable by up to 5 yrs imprisonment).

[24] See Miss. Code. Ann. § 63-11-30(2)(c) (2016) (3rd DUI in 5 yrs is felony punishable by up to 5 yrs imprisonment).

[25] See Mo. Rev. Stat. § 577.023(1)(5)(a) & (3) (2015) (3rd DUI is class D felony); id. § 558.011(1)(4) (class D felony punishable by up to 4 yrs imprisonment).

[26] See Nev. Rev. Stat. § 484C.400(1)(c) (2016) (3rd DUI in 7 yrs is category B felony punishable by up to 6 yrs imprisonment).

[27] See Or. Rev. Stat. § 813.011(1) (2015) (3rd DUI in 10 yrs is class C felony); id. § 161.605(3) (class C felony punishable by up to 5 yrs imprisonment).

[28] See R.I. Gen. Laws § 31-27-2(d)(3)(i) (2015) (3rd DUI in 5 yrs is felony punishable by up to 3 yrs imprisonment).

[29] See S.C. Code Ann. § 56-5-2933(A)(3) & (D) (2016) (3rd DUI in 10 yrs punishable by up to 3 yrs imprisonment); id. § 16-1-100(A) (stating that 3rd DUI in 10 yrs is a “Class A misdemeanor[]”).

[30] See S.D. Codified Laws §§ 32-23-4, 32-23-4.1 (2016) (3rd DUI in 10 yrs is class 6 felony); id. § 22-6-1(9) (class 6 felony punishable by up to 2 yrs imprisonment).

[31] See Tex. Penal Code Ann. § 49.09(b)(2) (2016) (3rd DUI is third degree felony); id. § 12.34(a) (third degree felony is punishable by up to 10 yrs imprisonment).

[32] See Utah Code § 41-6a-503(2)(b) (2016) (3rd DUI in 10 yrs is third degree felony); id. § 76-3-203(3) (third degree felony punishable by up to 5 yrs imprisonment).

[33] See Vt. Stat. tit. 23, § 1210(d) (2015) (3rd DUI is punishable by up to 5 yrs imprisonment); id. tit. 13, § 1 (deeming a “felony” any offense punishable by over 2 yrs imprisonment).

[34] See Va. Code § 18.2-270(C)(1) (2016) (3rd DUI in 10 yrs is class 6 felony); id. § 18.2-10(f) (class 6 felony punishable by up to 5 yrs imprisonment).

[35] See W. Va. Code § 17C-5-2(m)-(n) (2015) (3rd DUI in 10 yrs is felony punishable by up to 5 yrs imprisonment).

[36] See Ala. Code § 32-5A-191(h) (2016) (4th DUI is class C felony punishable by up to 10 yrs imprisonment).

[37] See Ark. Code Ann. § 5-65-111(d)(1)(A) (2016) (4th DUI in 5 yrs is “unclassified felony” punishable by up to 6 yrs imprisonment).

[38] See Cal. Veh. Code § 23550(a) (2016) (4th DUI in 10 yrs punishable “by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code”); Cal. Penal Code § 1170(h)(1) (2016) (authorizing up to 3 yrs imprisonment in county jail).  Note that a 4th DUI in California is a “wobbler” offense, which is a felony by default, but can be reclassified as a misdemeanor if a court, prosecuting attorney, or magistrate satisfies the conditions of Cal. Penal Code § 17(b).  If so reclassified, then a 4th DUI would be punishable by up to a year’s imprisonment in county jail, and consequently would not trigger the federal felon gun ban.  See United States v. Boumelhem, 339 F.3d 414, 425-27 (6th Cir. 2003) (discussing when these sorts of “wobbler” crimes qualify as predicate offenses for purposes of this ban).

[39] See Colo. Rev. Stat. § 42-4-1301(1)(a) (2015) (4th DUI is class 4 felony); id. § 18-1.3-401(1)(a)(V)(A) (class 4 felony punishable by up to 6 yrs imprisonment).

[40] See Ga. Code Ann. § 40-6-391(c)(4)(B) (2016) (4th DUI in 10 yrs is punishable by up to 5 yrs imprisonment); id. § 16-1-3(5) (“‘Felony’ means a crime punishable . . . by imprisonment for more than 12 months.”).

[41] See Haw. Rev. Stat. § 291E-61.5(c)-(d)(1) (2016) (4th DUI is class C felony punishable by up to 5 yrs imprisonment).

[42] See Ky. Rev. Stat. § 189A.010(5)(d) (2016) (4th DUI in 10 yrs is Class D felony); id. § 532.060(2)(d) (Class D felony is punishable by up to 5 yrs imprisonment)

[43] See Minn. Stat. § 169A.24 subdiv. 2 (2015) (4th DWI in 10 yrs is felony punishable by up to 7 yrs imprisonment).

[44] See Mont. Code Ann. § 61-8-731(1) (2015) (4th DUI is felony punishable by up to 5 yrs imprisonment).

[45] See Neb. Rev. Stat. § 60-6,197.03(7) (2016) (4th DUI is class IIIA felony); id. § 28-105(1) (class IIIA felony punishable by up to 3 yrs imprisonment).

[46] See N.H. Rev. Stat. Ann. § 265-A:18(IV)(c) (2016) (4th DWI in 10 yrs “is a felony”); id. § 625:9(III)(a) (“Felonies other than murder are either class A felonies or class B felonies when committed by an individual.”); id. § 625:9(III)(a)(2) (class B felony punishable by up to 7 yrs imprisonment).

[47] See N.M. Stat. § 66-8-102(G) (2015) (4th DUI is 4th degree felony punishable by up to 18 months’ imprisonment).

[48] See N.C. Gen. Stat. § 20-138.1(d) (2015) (DUI offense is misdemeanor); id. § 20-179(c)(1)(a) & (f3) (4th DUI in 7 yrs is punishable by up to 3 yrs imprisonment).  Note that DUI’s are exempt from the “structured sentencing” regime imposed by N.C. Gen. Stat. ch. 15A, art. 81B (2016).  See id. § 15A-1340.10 (“This Article applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1 . . . .”).

[49] See N.D. Cent. Code § 39-08-01(3) (2016) (4th DUI in 15 yrs is class C felony); id. § 12.1-32-01(4) (class C felony punishable by up to 5 yrs imprisonment).

[50] See Ohio Rev. Code § 4511.19(G)(1)(d) (2016) (4th DUI in 6 yrs is 4th degree felony punishable by up to 30 months’ imprisonment).

[51] See Tenn. Code Ann. §§ 55-10-402(a)(4), 55-10-405(a) (2016) (4th DWI in 10 yrs is class E felony); id. § 40-35-111(b)(5) (class E felony punishable by up to 6 yrs imprisonment).

[52] See Wis. Stat. § 346.65(2)(am)(4m) (2016) (4th DUI, with 3rd DUI within 5 yrs, is class H felony); id. § 939.50(3)(h) (class H felony punishable by up to 6 yrs imprisonment).

[53] See Wyo. Stat. Ann. § 31-5-233(e) (2016) (4th DUI in 10 yrs is felony punishable by up to 7 yrs imprisonment).

[54] See Wash. Rev. Code § 46.61.502(6)(a) (2016) (5th DUI in 10 yrs is class B felony); id. § 9A.20.021(1)(c) (class B felony punishable by up to 10 yrs imprisonment).

[55] See Kan Stat. Ann. § 8-1567(b)(1)(D)-(E) (2015) (4th DUI, or 3rd DUI with prior DUI in 10 yrs, is nonperson felony punishable by up to 1 year in prison).

[56] See N.J. Stat. § 39:4-50(3) (2016) (3rd DUI in 20 yrs punishable by 180-day jail term); State v. Hamm, 577 A.2d 1259 (N.J. 1990) (holding that DUI in New Jersey is not a criminal offense).

[57] See 75 Pa. Cons. Stat. § 3803(a)(2) (2016) (3rd DUI is 2nd degree misdemeanor); 18 id. § 1104(2) (2nd degree misdemeanor punishable by up to 2 yrs imprisonment).

[58] See D.C. Code § 50–2206.13(c) (2016) (3rd DUI punishable by up to 1 yrs imprisonment).  Note that D.C. is treated as a state for purposes of the federal felon gun ban.  See 18 U.S.C § 921(a)(2) (“The term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).”).

[59] See D.C. Code § 7–2502.01(a) (2016) (prohibiting gun possession by anyone in D.C. “unless the person or organization holds a valid registration certificate for the firearm.”); id. § 7–2502.03(a)(4)(C) (barring issuance of a registration certificate to anyone “convicted within 5 years prior to the application of . . . Two or more violations of . . . in this or any other jurisdiction, any law restricting driving under the influence of alcohol”).

[60] See Kan Stat. Ann. § 8-1567(b)(1)(D) (2015) (3rd DUI, with prior DUI in 10 yrs, is nonperson felony); id. § 21-6304(a)(3)(B) (banning gun possession by anyone who “within the preceding 10 years, has been convicted of a . . . nonperson felony under the laws of Kansas”).

[61] See 18 Pa. Cons. Stat. § 6103(c)(3) (2016) (prohibiting gun possession by any “person who has been convicted of driving under the influence of alcohol . . . on three or more separate occasions within a five-year period.”).

[62] See N.J. Stat. § 2C:39-5(b)-(c) (2016) (barring handgun possession by anyone who lacks “a permit to carry the same,” and possession of “any rifle or shotgun without having first obtained a firearms purchaser identification card”); id. § 2C:58-3(c)(2) (barring issuance of a “firearms purchaser identification card . . . to any person who is presently an habitual drunkard”); id. § 2C:58-4(d) (barring issuance of handgun carry permits to anyone “subject to any of the disabilities set forth in section 2C:58-3c . . . .”).

[63] See State v. Pyskaty, No. A-3742-09T1, 2011 N.J. Super. Unpub. LEXIS 1822, at *11-12 (N.J. Super. Ct. App. Div. Jul. 8, 2011) (holding that “one DWI conviction from several years earlier” did not provide sufficient evidence to conclude that defendant was a “habitual drunkard”).

[64] State v. Freysinger, 710 A.2d 596, 598 (N.J. Super. Ct. Ch. Div. 1997) [hereinafter Freysinger I].  See also State v. Freysinger, 710 A.2d 582, 586 (N.J. Super. Ct. App. Div. 1998) (holding that “two driving under the influence convictions and two convictions for refusing to submit to chemical tests” provided “sufficient proof . . . to demonstrate that defendant . . . is an habitual drunkard . . . .”).

[65] Freysinger I, 710 A.2d at 598.

[66] See MI, Comment to Background Checks, Alexandria (Mar. 17, 2013, 10:44 PM), (noting that the federal felon gun ban may apply to some DUI convictions “depend[ing] on the particulars of state law, and perhaps on how many DUIs one already has.”).

The History of U.S. Draft Registration

Posted in Law on 20160626 by Avenging Sword

In a recent Vox post, Katherine Hicks stated,

. . . If [S.2943, the Senate version of the 2017 National Defense Authorization Act] becomes law, women turning 18 on or after January 1, 2018, will have to sign up for the Selective Service System.

Men have been required to do so since the Civil War, though the Selective Service System has only existed in its current form since 1980.[1]

The italicized phrase, however, oversimplifies the history of American draft registration, and seemingly – but erroneously – implies that male draft registration has been continuously required from the Civil War until today.  In fact, during the Civil War, the federal government probably did not require men to register for the draft.  During both world wars, the United States required men to register, but initially only on certain days.  Continuous registration, with men having to register upon turning 18, only began in World War II.

During the Civil War, draft registration, as we understand it, did not exist.  U.S. draft laws did require “enrol[ment] [of] all persons subject to military duty, noting their respective places of residence, ages on the first day of July following, and their occupation . . . .”[2]  However, this enrollment or registration “was on a personal canvass basis in which the enrolling officer went from house-to-house to enroll all potential draftees.”[3]  Conducted by the Bureau of the Provost Marshal General, this enrollment began in mid-1863,[4] and apparently ended soon after Appomattox.[5]

Although U.S. Civil War draft laws did criminalize draft resistance,[6] failing to report for induction,[7] and forcible interference with enrollment,[8] they apparently did not penalize mere failure to register for the draft.  Brigadier General James Oakes, who administered the Union draft in Illinois, implied as much in an 1865 report to the Provost Marshal General.  After noting that the Civil War enrollment involved “endeavoring to search out and hunt up every person liable to military service, through the agency of a vast multitude of petty enrolling officers,” Oakes instead recommended that, in any future American draft, “the government should impose its supreme demands directly upon the people themselves, and require them, under the sternest penalties, to report themselves for enrolment.”[9]  Notably, Oakes also stated that “the errors contained in [Civil War] enrolments were not due so much to remissness on the part of enrolling officers, (some of whom, doubtless, were incompetent and unfaithful,) as to grave defects in the laws themselves under which they acted.”[10]  This statement implies the Civil War draft laws did not contain the legal machinery required to implement Oakes’ preferred system of requiring individuals to register with the government.  In other words, those laws neither required anyone to register, nor penalized any person’s failure to do so.

In World War I, the United States adopted Oakes’ recommendation of mandatory draft registration.  Under the Selective Draft Act,[11] men subject to conscription primarily registered en masse on days designated by presidential proclamations.[12]  None of these proclamations, however, required ongoing registration of men as they turned 18.[13]  Hence, registration largely “ended” even before the draft expired.  Admittedly, a few men, who were outside the United States on the designated registration dates, may have registered afterward.[14]  Nevertheless, because the World War I Selective Service system, which received and processed the registrations, closed on July 15, 1919,[15] nobody could have registered after this date.

Under the authority of the Selective Training and Service Act,[16] American draft registration restarted in 1940, and continued through World War II.  Initially, this draft, like its World War I-era predecessor, registered men en masse on days specified by presidential proclamations.[17]  However, the last three registration proclamations also mandated continuous registration, requiring any man, who turned 18 after the last designated registration days, to register on his eighteenth birthday.[18]  Since these proclamations were never revoked, registration at age 18 remained mandatory until the Selective Training and Service Act expired on March 31, 1947.[19]

Less than two years later, President Truman decreed the resumption of draft registration under (what is now) the Military Selective Service Act.[20]  Truman’s proclamation mandated mass registration of persons aged 18-26 on designated days, and required any man “born on or after September 19, 1930,” to register on his birthday “or within five days thereafter.”  Subsequent proclamations extended draft registration to the Canal Zone and Guam,[21] and required registration of both U.S. citizens residing overseas[22] and resident aliens who entered U.S. territory.[23]  In 1975, President Ford revoked the previously-issued registration proclamations, “thereby terminating the present procedures for registration under the Military Selective Service Act, as amended.”[24]  By proclamation of President Carter, however, draft registration restarted in 1980,[25] and has continued to the present day.

[1] Katherine Hicks, Like It Or Not, Gender Equality May Soon Come to the U.S. Military Draft, Vox (Jun. 15, 2016, 3:20 PM),  The provision in question is S.2943, 114th Cong. § 591 (as passed by Senate, Jun. 14, 2016), available at

[2] Act of Mar. 3, 1863, ch. 75, § 9, 12 Stat. 731, 732-33.

[3] William L. Shaw, The Civil War Federal Conscription and Exemption System, 32 Judge Advoc. J. 1, 11 (1962).  See also Kristy N. Kamarck, Cong. Research Serv., R44452, The Selective Service System and Draft Registration: Issues for Congress 2 (2016) (“Enrolment was done by government agents on a door-to-door basis . . . .”).

[4] See Final Report Made to the Secretary of War By the Provost Marshal General, pt. I, at 16 (Washington, Gov. Printing Off. 1866) (“The enrolment was commenced about the 25th of May, 1863 . . . .”).

[5] See id. at 46 (noting that “orders were issued on the 13th of April, 1865, to discontinue the business of recruiting and drafting”); id. at 22 (“[W]hen the business of the bureau was practically stopped in April, 1865, the enrolment was as nearly correct as it can well be made under existing laws.”).  By federal statute, the Bureau terminated on August 28, 1866.  See Act of Jul. 28, 1866, ch. 299, § 33, 14 Stat. 332, 337 (“[T]he provost-marshal-general’s office and bureau shall be continued only so long as the Secretary of War shall deem necessary, not exceeding thirty days after the passage of this act.”).

[6] See Act of Mar. 3, 1863, ch. 75, § 25, 12 Stat. 731, 735.

[7] See id. § 13, 12 Stat. at 733.

[8] See Act of Feb. 24, 1864, ch. 13, § 12, 13 Stat. 6, 8.

[9] Final Report Made to the Secretary of War By the Provost Marshal General, pt. II, at 25 (Washington, Gov. Printing Off. 1866).

[10] Id. at 24 (emphasis added).

[11] Act of May 18, 1917, Ch. 15, 40 Stat. 76-83.

[12] See Second Report of the Provost Marshal General 22-38 (1919) (discussing these registrations).

[13] See Proc. of May 18, 1917, 40 Stat. 1664-67; Proc. of Jun. 27, 1917, 40 Stat. 1674; Proc. of Jun. 30, 1917, 40 Stat. 1679-80; Proc. of Jul. 2, 1917, 40 Stat. 1680-81; Proc. of May 20, 1918, 40 Stat. 1781-85; Proc. of Jun. 11, 1918, 40 Stat. 1793-96; Proc. of Jun. 17, 1918, 40 Stat. 1796-1799; Proc. of Jun. 17, 1918, 40 Stat. 1799-1802; Proc. of Aug. 13, 1918, 40 Stat. 1834-37; Proc. of Aug. 31, 1918, 40 Stat. 1840-44; Proc. of Sept. 18, 1918, 40 Stat. 1851-54; Proc. of Oct. 7, 1918, 40 Stat. 1860-63; Proc. of Oct. 10, 1918, 40 Stat. 1856-59.

[14] See, e.g., Proc. of Aug. 31, 1918, 40 Stat. 1840-44 (“Any person who . . . on account of absence without the territorial limits of the United States, may be unable to comply with the regulations pertaining to absentees, shall, within five days after reaching the United States, register . . . .”).

[15] See Final Report of the Provost Marshal General 13 (1920) (“By July 15 [in 1919] . . . the last act of the selective-service system had been performed and the organization terminated as of that day.”).

[16] 50 U.S.C. app. §§ 301-316 (1946).

[17] See Selective Service Sys., Special Monograph No. 4, Registration and Selective Service 63-83 (1946).

[18] See Proc. No. 2572, Nov. 17, 1942, § 1(d), 56 Stat. 1982, 1984; Proc. No. 2597, Oct. 26, 1943, § 1(b), 57 Stat. 755, 756; Proc. No. 2620, Sept. 17, 1944, § 1(b), 58 Stat. 1150, 1152. Although the continuous-registration mandate of Proclamation 2572 only applied “During the continuance of the present war,” Ludecke v. Watkins, 335 U.S. 160, 169-70 (1948), held that a state of war continued at least through June 21, 1948.

[19] See 50 U.S.C. app. § 302, 316 (1946) (authorizing registration, and providing for its expiration “at 12 o’clock post-meridian on March 31, 1947”); Youths to Register at Eighteen Years, Boise City News, Feb. 13, 1947, at 1 (“It has been pointed out be [sic] the local selective board, that some men becoming eighteen years of age are not familiar with their responsibility and duty to register with the Selective Service Board upon attaining that age.”).

[20] 50 U.S.C. app. §§ 451-472 (2012 & Supp. II 2014).

[21] See Proc. No. 2937, Aug. 16, 1951, 65 Stat. c27-c29; Proc. No. 2938, Aug. 16, 1951, 65 Stat. c30-c32.

[22] See Proc. No. 2972, Apr. 17, 1952, 66 Stat. c28-c30.

[23] See Proc. No. 2942, Aug. 30, 1951, 65 Stat. c35-c37.

[24] Proc. No. 4360, Mar. 29, 1975, 89 Stat. 1255.

[25] See Proc. No. 4771, Jul. 2, 1980, 94 Stat. 3775-76.

The Origins of Felon Disenfranchisement in Virginia

Posted in Uncategorized on 20160613 by Avenging Sword

The Virginia state constitution denies the vote to every “person who has been convicted of a felony . . . unless his civil rights have been restored by the Governor or other appropriate authority.”[1]  Recently, Virginia governor Terry McAuliffe ordered the restoration of voting rights for all felons “who have, as of this 22nd day of April 2016, (1) completed their sentences of incarceration for any and all felony convictions; and (2) completed their sentences of supervised release, including probation and parole, for any and all felony convictions.”[2]  Defending this order, articles in several publications subsequently argued that Virginia’s felon disfranchisement provision originated in the commonwealth’s previous, Jim-Crow-era, 1902 constitution.[3]  Disagreeing with this position are various other parties, including Governor McAuliffe himself,[4] opponents of his order,[5] federal courts,[6] and scholarly opponents of felon disfranchisement,[7] all of whom explicitly or implicitly concede that Virginian felon disfranchisement long predates the 1902 constitution.  In my view, this latter position is correct; Virginia first disfranchised felons at least three, and perhaps seven, decades before the enactment of the 1902 “Jim Crow” constitution.

Admittedly, Virginia’s 1902 constitution did indeed disfranchise

persons who, prior to the adoption of this Constitution, were disqualified from voting, by conviction of crime, either within or without this State, and whose disabilities shall not have been removed; [and] persons convicted after the adoption of this Constitution, either within or without this State, of treason, or of any felony, bribery, petit larceny, obtaining money or property under false pretences, embezzlement, forgery, or perjury . . . .[8]

This provision, however, was not the first of its kind in the commonwealth.  Virginia’s 1870 constitution also barred voting by all “Persons convicted of bribery in any election, embezzlement of public funds, treason, or felony.”[9]  Appearing in the same constitution that first enfranchised black male Virginians,[10] this provision, on its face, clearly disfranchised all felons in Virginia.

Moreover, Virginia’s 1830, 1851, and 1864 constitutions probably disfranchised felons, because each of these documents denied the vote to “any person convicted of any infamous offence”;[11] and antebellum American law usually defined “infamous offense” or “infamous crime” to encompass felonies.  For instance, during the convention that drafted the 1830 constitution, delegates interpreted “infamous offence” and “infamous crime” in this manner.[12]  So also did nineteenth-century legal treatises[13] and courts[14] (including those in Virginia[15]), when discussing the procedural rules barring testimony by those convicted of “infamous crimes.”  Similarly, when other states’ constitutions barred voting or office-holding by those convicted of “infamous crimes,”[16] supreme courts in those states defined that phrase to encompass felons.[17]  Such evidence strongly implies that Virginia’s 1830 constitution – and not that document’s 1902 successor – first introduced felon disfranchisement into the commonwealth.

[1] Va. Const. art. II, § 1 (1971), available at

[2] Va. Order for the Restoration of Rights (Apr. 22, 2816),

[3] See Matt Ford, The Racist Roots of Virginia’s Felon Disenfranchisement, Atlantic Monthly, Apr. 27, 2016, (characterizing the order as “an exorcism for one of Jim Crow’s last vestiges in Virginia’s state charter”; and stating that, “Now, Virginia is rolling back more than a century of racial disenfranchisement conducted beneath the thinnest veneer of legitimacy.”); id. (“Disenfranchising people with criminal convictions was one of many vote-suppressing tools deployed in the state’s 1902 constitution, which was explicitly drafted and ratified to destroy black political power in the Old Dominion.”); id. (“The 1830 constitution limited [criminal disfranchisement] to ‘infamous crimes,’ for example, while its 1851 successor drafted by reformers added bribery and the 1870 charter targeted treason and corruption.”); id. (noting that, upon enactment of Virginia’s 1971 constitution, “Many of the defunct measures to constrain black voting were erased . . . . But the felon disenfranchisement provision remained . . . .”).   See also Steve Benen, Virginia GOP to Sue McAuliffe over Felon Voting Rights, MSNBC, May 2, 2016, (discussing “the history of Virginia’s felon-disenfranchisement law, which was created by policymakers who made no effort to hide their racist intentions.”); Samantha Lachman, Civic Groups Are Rushing To Register Newly Eligible Ex-Offenders In Virginia, Huffington Post, May 9, 2016, (stating that “the state’s constitution enshrined felon disenfranchisement into law in 1902,” and that “disenfranchising ex-offenders was an inherently political move in the first place, more than a century ago.”); James M. McCarthy, Letter to the Editor, History Upends the GOP Narrative on Virginia Voting Rights, Wash. Post, May 26, 2016, (“the historical record demonstrates that the current statutory provision was adopted in a 1901-1902 constitutional convention.”); Vann Newkirk, Governor McAuliffe’s Gambit, Atlantic Monthly, Apr. 27, 2016, (“Over a century ago, Virginia first enshrined felon disenfranchisement in its constitution. A Jim Crow-era provision stated that all people who had been convicted of felonies were barred from voting . . . .”); Crimson Quillfeather, Suing Governor Terry McAuliffe: The More Things Change . . . A Short Overview, Daily Kos, May 24, 2016, (stating, with respect to Virginia felon disfranchisement, that “The origins of the Virginia’s voter restriction laws goes all the way back to 1902 and the Constitutional Convention . . . .”); Editorial, Restoring Virginians’ Voting Rights, Wash. Post, May 8, 2016, (“THE INTENT of Virginia’s ban on voting by convicted felons was to weaken the political power of black people, whose electoral clout was abhorrent to the racists who enacted the prohibition a century ago.”).

[4] Terry McAuliffe, In His Own Words: Governor Terry McAuliffe on Restoring the Rights of 206,000 Virginians, Medium, Apr. 22, 2016, (emphasis added) (stating that “the 1902 constitution establish[ed] . . . broader restrictions on individuals with felony convictions.”).

[5] Charles J. Cooper, Op-Ed, Terry McAuliffe vs. The Rule of Law, Wall Street J., Jun. 2, 2016, (stating that Virginia’s “prohibition on felon voting dates back to 1830 . . . .”).

[6] Howard v. Gilmore, No. 99-2285, slip op. at 2 (4th Cir. Feb. 23, 2000) (“The Commonwealth’s decision to disenfranchise felons pre-dates the adoption of both [the Fourteenth and the Fifteenth] constitutional amendments as well as the extension of the franchise to African-Americans [in 1870].”); Perry v. Beamer, 933 F. Supp. 556, 559 (E.D. Va. 1996) (citing Va. Const. art. III, § 14 (1830)) (“The Commonwealth of Virginia has long excluded convicted felons from the franchise.”).

[7] Helen A. Gibson, Felons and the Right to Vote in Virginia: A Historical Overview, The Va. Newsletter, Jan. 2015, at 2 (“in 1830, . . . the state’s first explicit felon disenfranchisement measure . . . was implemented.”); Dori Elizabeth Martin, Comment, Lifting the Fog: Ending Felony Disenfranchisement in Virginia, 47 U. Rich. L. Rev. 471, 477 (2012) (“[F]elony disenfranchisement . . . . became part of the Virginia Constitution in 1830, long before slavery was abolished and African Americans were given the right to vote.”).

[8] Va. Const. art. II, § 23 (1902), reprinted in 7 The Federal and State Constitutions 3902, 3908 (Francis Newton Thorpe, ed. 1909) [hereinafter FSC].

[9] Va. Const. art. III, § 1 (1870), reprinted in 7 FSC, supra note 8, at 3871, 3875.  Ford, supra note 3, oddly fails to mention this particular exclusion, even though the article otherwise evinces familiarity with the 1870 charter’s voting qualifications by stating that they “excluded only people convicted of corruption or treason, participants in duels, and ‘idiots and lunatics’ from voting.”

[10] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 338-39 (1974).

[11] Va. Const. art. III, § 14 (1830), reprinted in 7 FSC, supra note 8, at 3819, 3826; see also Va. Const. art. III, § 1 (1864) (“No person shall have the right to vote . . . who has been convicted . . . of any infamous offence.”), reprinted in 7 FSC, supra note 8, at 3852, 3855; Va. Const. art. III, § 1 (1851) (“[N]o person shall have the right to vote . . . who has been convicted . . . of any infamous offence.”), reprinted in 7 FSC, supra note 8, at 3829, 3833.

[12] For instance, Charles Morgan proposed barring “those under judgment of felony or other infamous crime” from voting.  See Proceedings and Debates of the Virginia State Convention of 1829-30, at 44 (Richmond, Samuel Shepard & Co. 1830).  Similarly, when a resolution from the convention’s Legislative Committee proposed disfranchising “any person convicted of any infamous offence,” Benjamin Leigh noted that this proposal would bar voting by “the felons in the Penitentiary[.]”  Id. at 39, 151, 161.

[13] 1 Joel Prentiss Bishop, Commentaries on the Criminal Law § 644 (Boston, Little, Brown & Co. 1856) (referring to “treason, felony, and certain classes of misdemeanors known by the term crimen falsi, all of which are commonly called infamous crimes . . . .”); 1 Simon Greenleaf, A Treatise on the Law of Evidence 477 (Boston, Little & Brown, 5th ed. 1850) (“It is a point of no small difficulty to determine precisely the crimes which render the perpetrator thus infamous. . . . The usual and more general enumeration is, treason, felony, and the crimen falsi.”); id. at 480 (“[N]o person is deemed infamous in law, until he has been legally found guilty of an infamous crime.”); Thomas Peake, A Compendium of the Law of Evidence 199-200 (Philadelphia, Abraham Small 1824) (“Treason or felony, and every species of what is called in our books the crimen falsi . . . prevent a man, when convicted of them, from being examined in a Court of Justice. . . . if he be convicted of barratry, or other infamous offence . . . such conviction renders him incompetent.”); 1 S. March Phillipps, A Treatise on the Law of Evidence 14 (London, Saunders & Benning, 9th ed. 1842) (footnote omitted) (“The conviction of an infamous crime, followed by judgment, disqualifies a person from giving evidence in our courts of justice . . . .”); id. at 16 (“the whole class of offences which come under the denomination of felony, incapacitate . . . .”); 1 Thomas Starkie, A Practical Treatise of the Law of Evidence 95 (London, V. & R. Stevens and G.S. Norton 1842) (footnotes omitted) (“[W]hen convicted of an infamous crime, [a witness] is incompetent . . . . The crimes which render a person incompetent are treason, felony, all offences founded in fraud, and which come within the general notion of the crimen falsi of the Roman law . . . .”); 2 Archibald John Stephens, The Law of Nisi Prius 1721 (footnote omitted) (Philadelphia, Carey & Hart 1844) (noting, under the heading “Crimes that are infamous,” that “Persons convicted of treason, [and] felony . . . are considered infamous.”).

[14] Carter v. Cavenaugh, 1 Greene 171, 176 (Iowa 1848) (“[W]hen a witness has been legally and finally adjudged guilty of an infamous crime, he is rendered incompetent, unless rehabilitated by pardon. Such infamy results only from . . . treason, felony, and the crimen falsi . . . .”); Commonwealth v. Green, 17 Mass. (17 Tyng) 515, 539 (1822) (noting that “an infamous crime” encompassed “treason,” “felony,” and “the crimen falsi . . . .”); Carter v. Andrews, 33 Mass. (16 Pick.) 1, 5 (1834) (referring to “felony or any other infamous crime punishable by law.”); Ryan v. Ryan, 9 Mo. 539, 543 (1845) (referring to “a conviction of felony or other infamous crime . . . .”); Minnesota v. Hogard, 12 Minn. 293, 295 (1867) (“[T]he term ‘infamous crime’ [is] used to characterize those offences which are statutory felonies.”); People v. Toynbee, 13 N.Y. 378, 457 (1856) (Opinion of Hubbard, J.) (“That section simply forbids the legislature from enacting any law by which an offender, charged with an infamous crime, in other words a felony, may be held to answer, except upon indictment.”); Carroll v. White, 33 Barb. 615, 621 (N.Y. Sup. Ct. 1861) (referring to “a charge of felony or other infamous crime . . . .”); People v. Whipple, 9 Cow. 707, 708 (N.Y. Cir. Ct. 1827) (noting that “a conviction of treason, or felony, or of any species of the crimen falsi, will incapacitate the party convicted from giving evidence,” and that a person “convicted of an infamous crime, is an incompetent witness.”); In re Hughes, 61 N.C. (1 Phil.) 57, 64 (1867) (quoting Letter from R.M. Pearson, C.J., N.C., to Jonathan Worth, Governor, N.C. (Jun. 21, 1866)) (“If it be infamous or degrading, as the jail or penitentiary, the offense is a crime, and properly associated with ‘treason’ and ‘felony.’”); Sparrow v. Maynard, 53 N.C. (8 Jones) 195, 196 (1860) (referring to “felonious or other infamous offenses.”); Bickel’s Ex’rs v. Fasig’s Adm’r, 33 Pa. 463, 464 (1859) (“The usual distribution of infamous offences is, into treason, felony, and the crimen falsi . . . .”); State v. Keyes, 8 Vt. 57, 64-65 (1836) (“[T]he number of infamous crimes . . . should not be multiplied by construction. Those which are held to be infamous, as treason, felony, forgery, and perjury and bribery, should be clearly defined and well known.”)

Admittedly, a few courts instead equated “infamous crimes” with crimes punishable by flogging or other penalties deemed “infamous.”  See In re Metzger, 17 F. Cas. 232, 237 (S.D.N.Y. 1847) (No. 9,511) (characterizing “infamous punishment” as one of “the consequences of an infamous crime.”); Jones v. Robbins, 74 Mass. (8 Gray) 329, 347 (1857) (“Then comes the practical difficulty, as before suggested, in ascertaining, in particular cases, what are infamous punishments, or, in other words, what are infamous crimes and offences.”); Sparrow v. Maynard, 53 N.C. (8 Jones) 195, 196 (1860) (“Words actionable per se, that is say, where no special damage is alleged, must impute an infamous offense. . . . The infamy of the punishment seems to be the criterion by which the effect of words to degrade, socially, is judged . . . .”); Wall v. Hoskins, 27 N.C. (5 Ired.) 177, 179 (1844) (equating “infamous crime” with a crime subjecting the perpetrator to an “infamous punishment”).  However, even this reading of “infamous crime” could encompass felonies punishable by “infamous” penalties.  See United States v. O’Sullivan, 27 F. Cas. 367, 369 (S.D.N.Y. 1851) (No. 15,974) (characterizing “felonies” as “statutory offences, carrying with them an infamous punishment . . . .”); State v. Lartigue, 6 La. Ann. 404, 405 (1851) (“[T]he term felony . . . denotes, here, a crime of great magnitude, and subject to an infamous punishment–death or imprisonment at hard labor in the penitentiary.”).  Moreover, many other courts and authorities held that the nature of a given offense, and not the punishment associated therewith, determined whether that offense was “infamous.”  See State v. Jim, 1 Del. Cas. 335, 336 (1793) (“Many crimes not infamous are infamously punished, as fornication, etc. But it is not the punishment, but the crime, which constitutes the infamy which would render it dangerous to admit men as witnesses, and which therefore renders them incompetent.”); People v. Herrick, 13 Johns. 82, 84 (N.Y. Sup. Ct. 1816) (“[E]ven barratry will exclude a person from testifying; the infamy of the crime and not the nature of the punishment working the incapacity.”); State v. Yeates, 11 N.C. (4 Hawks) 187, 190-91 (1825) (“[T]here is no instance of a judge being invested with a discretionary power to consign a man to infamy by the nature of the punishment, unless there is something infamous or mean in the crime itself.”); State v. Kearney, 8 N.C. (1 Hawks) 53, 54 (1820) (“The rule of confiding infamous punishments to infamous crimes was so generally observed, that the crime and punishment became associated in the mind, and it was formerly thought that the latter, and not the former, disqualified the party as a witness.”); Bickel’s Ex’rs v. Fasig’s Adm’r, 33 Pa. 463, 465 (1859) (“the infamy of an offence does not consist in the punishment, but in the moral turpitude of the act itself . . . .”); Clellans v. Commonwealth, 8 Pa. 223, 228 (1848) (citation omitted) (“I would not be disposed to . . . expose any citizen to infamous punishment for undefined offences not in their nature infamous, at the discretion of any court.”).

[15] In Byrd v. Commonwealth, 2 Va. Cas. 490 (1826), the General Court of Virginia considered whether “an accomplice in the burglary and felony charged, who had been remanded for trial for the said offence,” id. at 490 (emphasis added), was “an incompetent witness, and was, therefore, improperly admitted [to testify in a criminal trial],” id. at 491.  By “the said offence,” the Court meant that the accomplice was to be tried for the same “burglary and felony” the principal.  See id. at 493.  If “infamous crimes” hadn’t encompassed felonies, then the Court could have simply decided the case on that ground.  Instead, however, the Court implicitly agreed that felonies were infamous crimes, and consequently affirmed the accomplice’s competency on the grounds that incompetency for “infamous crimes” only extended to those convicted of such crimes.  Id. at 491.  Since the accomplice to the felony in question hadn’t been convicted of that felony, the “infamous crimes” exclusion didn’t render him incompetent to testify.

[16] See Ark. Const. art IV, § 12 (1836), reprinted in 1 FSC, supra note 8, at 268, 272 (authorizing disfranchisement of “all persons convicted of bribery, perjury, or other infamous crime.”); Md. Const. art. I, § 5 (1851), reprinted in 3 FSC, supra note 8, at 1712, 1718 (“[N]o person above the age of twenty-one years, convicted of larceny or other infamous crime, unless he shall be pardoned by the executive, shall ever thereafter be entitled to vote at any election in this State . . . .”); N.Y. Const. art. II, § 2 (1821), reprinted in 5 FSC, supra note 8, at 2639, 2643 (authorizing “Laws . . . excluding from the right of suffrage persons who have been or may be convicted of infamous crimes.”); Pa. Const. art. VI, § 9 (1838), reprinted in 5 FSC, supra note 8, at 3104, 3112 (requiring that any state officer “shall be removed on conviction . . . of any infamous crime.”).

[17] See State v. Eldridge, 12 Ark. 608, 612 (1852) (“The felony is the conclusion of the law from the acts done with the intent described, and makes part of the punishment; as under our statute the prisoner is rendered infamous and also disfranchised.”); Black v. Maryland, 2 Md. 376, 380 (1852) (“[A] person convicted of an infamous crime is disqualified thereby as a witness, and to this disqualification our constitution . . . superadds another, the deprivation of the elective franchise. The prisoner has been convicted of an infamous crime, to wit, of a felony . . . .”); Barker v. People, 20 Johns. 457, 460 (N.Y. Sup. Ct. 1823) (“The law has settled what crimes are infamous; they are treason, felony, and every species of the crimen falsi, such as perjury, conspiracy, and barratry.”); Commonwealth v. Shaver, 3 Watts & Serg. 338, 342 (1842) (“[T]he conviction of a person of an infamous crime, renders him incompetent to be a witness thereafter . . . . The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi . . . .”).

Housekeeping & NDAA12 § 1031 Post

Posted in Law, Mil on 20111202 by Avenging Sword

Because has recently expressed hostility towards the practice of “mirroring” posts, until further notice I’ll be posting the full text of my posts at Alexandria, and a short synopsis and link here.


Responding to Dreher’s concerns regarding the AUMF reauthorization in the § 1031 of the pending National Defense Authorization Act, I post a few thoughts at the following link:§-1031/

On the Constitutionality of the Al-Aulaqi Killing

Posted in Law on 20111110 by Avenging Sword

I had planned to do a post about the constitutionality of the Al-Aulaqi killing.  Prior to completing that post, however, I discovered that John Dehn had already addressed the issue in a pair of posts on Cato’s website.  See here and here.  Basically, Dehn argues that, under Supreme Court decisions like the Prize Cases and Hamdi v. Rumsfeld, “lethal targeting of U.S. citizens who are part of an enemy army or force in armed conflict with the United States is entirely constitutional if it is otherwise consistent with the laws of war,” even “without a prior adjudication of guilt . . . .”  Admittedly, Dehn does not specifically consider whether Al-Aulaqi was indeed targetable under the laws of war.  However, this article by Robert Chesney does, and (mostly) answers that question in the affirmative.

I find Chesney’s analysis, and Dehn’s, persuasive.  Consequently, I am inclined to stand by my previously-expressed view regarding Al-Aulaqi’s killing.