Mississippi is violating the U.S. Constitution’s ban on cruel and unusual punishment by permanently stripping voting rights from people convicted of some felonies, a federal appeals court panel ruled in a split decision Friday.
Two judges on the 5th U.S. Circuit Court of Appeals panel ordered the Mississippi secretary of state to stop enforcing a provision in the state constitution that disenfranchises people convicted of specific crimes, including murder, forgery and bigamy.
If the ruling stands, thousands of people could regain voting rights, possibly in time for the Nov. 7 general election for governor and other statewide offices.
Mississippi Republican Attorney General Lynn Fitch expects to ask the full appeals court to reconsider the panel’s 2-1 ruling, her spokesperson, Debbee Hancock, said Friday.
From the majority opinion:
For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment. In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent. Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.
And in our independent judgment—a judgment under the Eighth Amendment that the Supreme Court requires we make—Section 241’s permanent disenfranchisement serves no legitimate penological purpose. By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is
thus a cruel and unusual punishment.
From Judge Edith Jones’s dissent:
Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties:
We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
Richardson v. Ramirez, 418 U.S. 24, 55, 94 S. Ct. 2655, 2671 (1974). In other words: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change. Today, the court turns that advice on its head. No need to change the law through a laborious political process. The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause. With respect, this is not a road that the Constitution—or precedent—allows us to travel. I dissent