Let me tell you an interesting story, from Ake v. Bureau of Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009), and see what you think of it.
1. In 2001, Kevin Allen Ake was living at a YMCA in Illinois, apparently “so that he could assist an elderly member of his church who lived there.” Several months after moving in, he was evicted, in his view because of his “efforts to begin a bible study program at the YMCA.” As a result, he left a bunch of messages on the voice-mail of the YMCA’s executive director, who was a lesbian; he denies that the messages contained explicit threats, but says he “basically shared what the Bible talked about was — with that kind of unnatural lifestyle — about lesbians and homosexuality.”
Ake was then prosecuted and convicted for telephone harassment, which covers telephone calls made “with intent to abuse, threaten or harass.” Two newspaper accounts reported that he was found guilty of leaving threatening messages, but nothing in the Illinois indictment, or in the Pennsylvania opinions that I read, makes it clear — it seems possible that the finding was simply that he made the calls with the intent to “abuse … or harass” rather than with the intent to threaten. In any case, though, telephone harassment, even harassment that isn’t expressly threatening, is a crime; the laws banning it are generally seen as constitutionally permissible speech restrictions (with some exceptions); and the story here is in any event not about that conviction, which may well have been perfectly sound.
2. Now generally speaking, telephone harassment is a misdemeanor. But Ake was apparently motivated at least in part by the executive director’s homosexuality, which made it a felony hate crime. Ake was thus convicted of a felony, and sentenced to 14 days’ in prison, with credit for time served before trial, plus 2½ years’ probation, 200 hours of community service, and a $2000 fine. In February 2005, Ake was discharged from probation.
3. So far, we have a normal “hate crime” story, though one in which the underlying crime was comparatively minor (and consisted of unprotected speech rather than physical violence). But there’s a twist: Ake is an accountant, and in 2007 he applied to reactivate his Pennsylvania CPA license. He had it reactivated despite his felony conviction, but then the State Board of Accountancy moved to revoke the license because of that conviction. And the Board did revoke the license — not just because of the conviction itself (which wouldn’t automatically disqualify him, especially since the conviction didn’t involve the sort of financial misconduct that most directly bears on fitness to be an accountant), but because of his continuing hostility to homosexuals and his perception that he was victimized by homosexuals:
[T]he very nature of Respondent’s offense — involving an irrational hatred of the victim — is plainly a manifestation of a character defect. Although [Ake] had completed all requirements of his criminal sentence as of February 2005, the Board has grave doubts as to whether [Ake] fully rehabilitated.
In his testimony at the formal hearing, [Ake] expressed the view that his conduct in harassing the victim because of her sexual orientation, while regrettable, did not rise to a level requiring criminal sanction. He maintained that he was prosecuted because of the district attorney’s sexual orientation, and he objected to his original mental health counselor because of the counselor’s sexual orientation. These facts powerfully suggest that [Ake] has not reformed his views….
The Board is of the view that the revocation of [Ake’s license] … is warranted … (1) to eliminate the risk of harm that [Ake] … might pose to those with whom he would have professional dealings as a certified public accountant; (2) to deter other certified public accountants who might be tempted to commit felonious acts outside the practice of public accounting in belief that there would be no consequences for their professional credentials; and (3) to provide assurance to the public that only individuals of unquestioned moral character are permitted to be counted among the ranks of certified public accountants.
4. In May, the Pennsylvania Commonwealth Court reversed the Board’s decision, and two weeks ago refused to reconsider its judgment.
It reasoned that “nearly seven years elapsed between Ake’s offending conduct and his application to reactivate his Pennsylvania CPA credentials”; that “Ake’s conduct was isolated to calls made over a two-week period; he has not engaged in similar conduct since his arrest”; the criminal conduct, while “deplorable,” “does not relate to any of the character qualities the legislature has identified as central to holding a CPA certificate, i.e., honesty, integrity and being able to practice accounting in a non-negligent manner. And as to the lack of rehabilitation,
The problem with the Board’s analysis is the lack of any objective standard for what constitutes ‘rehabilitation’ in this context. The Board does not attempt to provide one and, instead, pins its entire analysis on its disagreement with Ake’s beliefs and opinions. Ake’s testimony does indeed reveal that he
believes his conduct was not felonious, [footnote: Contrary to the Board’s conclusion, Ake never testified that his conduct did not warrant any criminal sanction. He merely expressed his disbelief that making harassing phone calls is graded as a felony offense in Illinois….] and that he was somehow targeted by the district attorney and his first psychological counselor for his religious beliefs about homosexuality. It is not for the Board or this Court to decide whether Ake’s beliefs are objectionable. The Board is not vested with authority to look into the hearts of those licensees who appear before them. The Board members may not assume the role of the proverbial thought police and require Ake or any other accountant to change his beliefs to conform with those of the Board’s members.
Yet the dissenting judge (the panel vote was 2-1) would have upheld the revocation of Ake’s license. She reasoned,
The Board was unimpressed with Ake’s testimony but did not render its decision because it found his views on homosexuality objectionable. Rather, it concluded that Ake’s view that his harassment of a victim because of her sexual orientation should not have resulted in criminal sanction, coupled with his attitude about the sexual orientation of the prosecutor and the mental health counselor, “powerfully suggest that Respondent has not reformed his ways.” The Board stressed the need for a CPA to be of good moral character and noted that a felony conviction evidences bad character. Contrary to the majority’s view, the Board did not require Ake’s rehabilitation; instead, it concluded that his testimony did not contradict the finding of bad character implied by his conviction….
[The Board] was empowered to conclude that Ake’s conviction evidenced bad character. As this Court recognized in Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355, 1358 (Pa. Cmwlth. 1990), a rational connection between one’s past derelictions and present ability to serve in a profession that requires honesty and integrity can exist “where those events occurred so recently that the particular character trait of the individual involved can be reasonably assumed to have
So despite the dissenting judge’s view that the Board “did not render its decision because it found his views on homosexuality objectionable,” it appears that she endorsed the Board’s holding against Ake his views that he was persecuted by homosexuals, and endorsed the conclusion that his lack of sufficient repentance shows inadequate “honesty and integrity.” Thus, if just one of the judges on panel had switched sides, Ake’s license revocation — based on his continuing unrepentant hostility to homosexuality, and his view that anti-gay telephone harassment shouldn’t be a felony — would have been upheld. Likewise, if Ake hadn’t been willing to take the time and money to appeal the decision, he’d have been denied his license partly based on his opinions.
5. Now Ake is probably not the man I’d want for my accountant; and it’s not irrational to draw the inferences that the Board drew, and conclude, for instance, that someone with Ake’s past record and current attitudes might be rude to gay or lesbian clients, or might even leave them harassing messages. Certainly past behavior is some predictor of future behavior.
But it seems to me that there should be something more than a rational fear of some possible (and likely fairly mild) misconduct before the government forbids someone from practicing his profession. And this is especially when the prohibition is based in part on the person’s opinions, however reprehensible. Ake has been punished, and has served his sentence. At this point, he continues to have the full First Amendment right to disapprove of homosexuality, to speculate about being persecuted by homosexuals, and to oppose felony punishment (or even any punishment) for telephone harassment.
Denying him a license based on his views plus his past crime (as opposed to just based on his past crime) strikes me as at least wrong and possibly unconstitutional. (By way of analogy, I take it we’d agree that denying someone a license based on his race, religion, or sex plus his past crime, as opposed to just based on his past crime, would be wrong and unconstitutional.) And this is especially so when the connection between the views and the character traits most necessary for accounting is relatively weak. Even if it’s proper to deny someone an accounting license because he has a past crime plus says it shouldn’t be a felony to, say, steal from the capitalists to give to the working classes (and I take no view on that), this shouldn’t apply when the person’s views relate to anti-homosexual telephone harassment.
6. Finally, this should be an illustration of two things. First, some of the most burdensome restrictions are indirect consequences of criminal punishment, not the direct ones. I was reminded of Hodgkins v. North Carolina Real Estate Comm’n, 504 S.E.2d 789 (N.C. Ct. App. 1998), in which the Commission denied Hodgkins a license as real estate salesman because of his past felony conviction for “soliciting a crime against nature,” i.e., soliciting gay sex, in a public place. The direct punishment was comparatively mild: “a term of imprisonment of two years which was suspended for three years’ unsupervised probation,” plus a fine of $250, and an order “to stay away from the North Carolina Arboretum and from a location known as Sandy Bottom.” And the conduct probably should have been criminal, not because it solicited sex from a stranger (something that normally isn’t a crime, especially when it’s done in a place where such sex solicitation is not uncommon), or because it focused on gay sex or on nongenital sex, but because it contemplated sex in a public park.
But the consequence was the denial of a license to practice your chosen profession. And the rationale for the denial was similarly tenuous: “A person’s tendency to abide by the law of the society in which he lives is a fair measure of that person’s trustworthiness and honesty. Such proof of petitioner’s failure to be a law-abiding citizen is therefore relevant to determine whether or not he possesses the character and integrity sufficient to be entrusted to ‘hold the position of public trust and confidence which licensure as a real estate broker demands.'” Really? Just how well does a willingness to break the laws against public sexual solicitation, or public sex, predict one’s possible misconduct as a real estate broker?
And, second, hate crimes laws in particular can have these sorts of unexpected effects. A misdemeanor becomes a felony. That triggers not just immediately greater criminal punishment, but various other rules that require greater scrutiny of people who have felony conviction records. And the application of those rules, plus a consideration of whether the person has been properly “rehabilitated,” tends to involve judgments about the person’s continuing ideological views. Committing a racist, anti-Semitic, or anti-gay crime — even a crime that would otherwise be comparatively minor — not only sends you to prison. It also potentially disqualifies you from a profession, perhaps for many years, so long as you continue to publicly espouse your opinions (even if you no longer act criminally based on them).
I don’t shed many tears for Ake himself. He certainly acted badly; and ultimately he got his license back. But cases such as this make me worry about the future, a future when 2-1 decisions such as the one here get flipped to 2-1 in the other direction: If a person commits even a minor crime (for instance, “disorderly conduct,” which is covered by the Illinois hate crime statute) because of a target’s sexual orientation, religion, race, and the like, the consequence isn’t just enhanced criminal punishment. It’s also that the government can continue, for years after the prison term is up, to decide whether the convicted person has properly changed his views, and to deny him the right to practice his chosen profession if he seems to continue harboring his “[un]reformed” and “irrational” ideas.