Via Bashman, the 8th Circuit has upheld one of the most bizarre and counterproductive laws ever conceived by Congress to make sure that people convicted of a drug crime receive no support in becoming a productive member of society.

From  The School Law Blog, a challenge to the “a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs” was rebuffed in Students for Sensible Drug Policy Foundation v. Spellings.  The Circuit rejected the double jeopardy argument, that having completed the sentence imposed, students were then subjected to a secondary penalty of being denied access to college financial aid.

The student group argued that the primary purpose of the law is deterrence of criminal action, so the secondary sanction on those convicted of drug crimes is a form of double jeopardy.  But the court noted that, under the law, a student may restore his or her eligibility for federal student aid by completing a drug-rehabilitation program.

“And the section was enacted as part of the Higher Education Amendments of 1998, which were primarily designed to increase access to college and make it more affordable,” the court said.

Now I’m not necessarily inclined to be dogmatic about how Circuit’s explain their reasoning, but this seems to lack a certain rational flow, even more so than most decisions.

The law, 28 USC 1091(r). is one of those sweet little caveats stuck into the Higher Ed amendments that smacks naughty children across the backside while giving the nice boys and girls a little extra sweetness.  The court’s analysis centered on whether it was a civil or criminal penalty, which is initially based on a determination of whether Congress, by its language, intended it to be a criminal penalty.  By not calling it criminal, it must be civil.

The court’s inquiry then turns to whether it is so punitive that it is criminal despite Congressional intent.  Clearly, a fine objective standard.  This is one of those great rationales, like Congress enacting a law that holds that all thieves should have their hand cut off if they want federal financial aid, but it’s civil because Congress could have required that the whole arm be cut off, thus making it far more punitive than it is.

Under dubious existing precedent, the 8th Circuit’s decision is probably correct, only because of the lack of sound basis for distinguishing between criminal and civil sanctions.  The problem is that law itself is irrational and counterproductive.  Do we not want people who have been convicted of crimes to turn their lives around, become productive and law-abiding members of society and never return to crime?  Then why enact laws to create new hurdles? 

This goes back to the notion that, once a sentence has been served, people have “paid their dues” to society.  While the problem is pervasive with people convicted of sex offenses, which carries at least an arguable (though creating an untenable permanent underclass) reason, there is absolutely no reason for this ongoing assault on people convicted of drug offenses.  Except, to give them an extra little smack for being bad boys and girls.

At Doug Berman’s Sentencing Law & Policy, a commenter rants that the law is irrational and therefore violates the due process clause.  A second commenter notes that when there’s no rational connection between the law and a non-punitive purpose, the entire classification scheme makes no sense, both raise valid points. 

The 8th Circuit decision shows two things quite clearly:  First, the reluctance of a court to do its job in invalidating unconstitutional laws when they can find any hook, no matter how questionable or unreasonable, to uphold it.  And second, that the days when former convicts are allowed to rejoin society after their punishment has been completed are over.  This is a bad decision upholding a very bad law. 

For people who are of the view that anyone convicted of a crime is unworthy of having a life, this probably won’t present a problem.  For everyone else, this is another group to add to the list of society’s rejects whose future potential is to live under bridges or go back to crime.  This is one incredibly stupid law.