Fifth Circuit Strikes Post-Conviction Voting Ban as “Cruel and Unusual”

    The intent of Mississippi’s lifetime voting ban for people convicted of certain crimes, written into the state constitution as Section 241, was racist. As the Fifth Circuit Court of Appeals explained in an August 3 ruling, Mississippi lawmakers created this element of the 1890 constitution with the explicit goal of “white political control.”

    In the recent case, plaintiffs were challenging their disenfranchisement under Section 241 in a class-action lawsuit. But the ruling in their favor did not rest on Equal Protection grounds.

    That’s because of the Supreme Court’s 1974 decision in Richardson v. Ramirez; this held that Section 2 of the Fourteenth Amendment, which allows the curtailing of voting rights for “participation in rebellion, or other crimes,” forecloses the application of the Equal Protection doctrine.

    Attorneys faced an uphill struggle, because Eighth Amendment jurisprudence in the United States is notoriously limited.

    Instead, the Fifth Circuit ruled that Mississippi’s lifetime ban on voting for people with certain criminal records violates the Eighth Amendment’s ban on “cruel and unusual punishment.”

    In seeking this, attorneys for the directly impacted plaintiffs adopted an ambitious tactic. They faced an uphill struggle, because Eighth Amendment jurisprudence in the United States is notoriously limited.

    Until Thompson v. Oklahoma (1988), the Supreme Court permitted the death penalty for kids under 16. And “terms of years” prison sentences are basically unchallengeable under the Eighth Amendment, no matter how disproportionate.

    Moreover, many punishments for formerly incarcerated people that are deemed to be provided by “civil” or “regulatory” laws, rather than criminal laws, are legally barred from judgment under the Eighth Amendment—even when it is common sense that the purpose of such laws is to impose punishment, which could be argued to be cruel and unusual.

    Massachusetts is currently rolling out a civil commitment program to force treatment for people who use drugs, and that is seemingly permitted. The same applies to locking people in solitary confinement, despite the practice being labelled torture by international human rights bodies. Or to deportation of non-citizens for the “crime” of skipping often-absurd visa waiting times, having faced awful circumstances in their home countries. Meanwhile, people convicted of virtually any sexual crime face a whole schema of complex laws that permanently brand them as “moral lepers,” no matter how they have conducted themselves since conviction.

    The decision hinged on two factors, including the Supreme Court-made doctrine of society’s “evolving standards of decency.”

    Nonetheless, the Fifth Circuit deemed the state’s lifetime voting ban to be “cruel and unusual” punishment and struck it down. How can this be?

    The decision hinged on two factors: the post-Civil War Readmission Act, which allowed rebel states to rejoin the US and permitted disenfranchisement for people with felonies only as punishment; and the Supreme Court-made doctrine, first codified in Trop v. Dulles (1958), of society’s “evolving standards of decency.”

    The latter holds that punishment should only be permitted when it fits these evolving standards, which are generally determined (as here) based on what a majority of states have done.

    That’s how we arrived at a conservative federal appeals court (Fifth Circuit) forcing a conservative state (Mississippi) to recognize that people with convictions should be allowed to fully reenter society.

    More attorneys should now feel encouraged to craft clever arguments to challenge harsh punishment that may not be called “punishment” under law.

    Now, the voting rights of tens of thousands of Mississippi residents should be automatically restored, since the constitutional provision has been ruled null and void. The ban disproportionately affected Black Mississippians.

    That’s a big win, but it shouldn’t stop there. More attorneys around the country should now feel encouraged to craft clever arguments to challenge disproportionately harsh forms of punishment that may not necessarily be called “punishment” under law.

    While the decision is narrower that it appears at first glance—the court did not have to struggle in demonstrating that voting bans are punishment, due to the context provided by the Readmission Act—it is an encouraging addition to a growing book of decisions on the Eighth Amendment’s potential.

    However, as helpful as the “evolving standards of decency” concept is, it is limiting by fact that some cruel and unusual punishments are simply not addressed one way or the other by most states’ laws (like how Massachusetts is believed to be the only state that “court-orders some men to treatment inside jails and prisons—even if they haven’t committed any crimes”). In addition, many punishments are cruel but not unusual, thanks to funding mandates from Congress or specific provisions of the US Constitution.

    “Evolving standards of decency” is a helpful concept in jurisprudence and should be pursued in furthering civil and human rights. But when it is taken simply to mean national norms, those very norms, sadly, will set inhumane limits on its application.



    Photograph via Pxfuel

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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