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Is it Cruel and Unusual to Deny Felons the Right to Vote?

By T. Evan Eosten Fisher, Esq. | Last updated on

In Mississippi, convicted felons face not only fines and prison time, but they also lose their right to vote. A group of convicted felons challenged this law in federal court, arguing that it violated their Eighth Amendment right to be free from cruel and unusual punishment. A divided panel of judges on the Fifth Circuit Court of Appeals agreed with them, ruling that the Mississippi law is unconstitutional.

The decision reversed a lower court, and it focused on aspects of the Mississippi law that made it especially harsh, noted the growing consensus against taking voting rights from convicts, and highlighted the racially disparate impact and historic intent of the statute.

The Cruel Nature of Losing the Right to Vote

The Fifth Circuit's analysis turned on a particular aspect of Mississippi’s law – the permanence of the loss of voting rights. Most other states strip the right to vote only from convicted felons who are still serving their sentences or on parole. The court was explicit in limiting the scope of its decision and noted that statutes imposing only temporary loss of voting rights would remain permissible.

Attorneys for Mississippi argued that a California law imposing permanent loss of voting rights for felons was upheld by the Supreme Court in the 1974 case, Richardson v. Ramirez. However, that case did not touch on the Eighth Amendment at all; it instead adjudicated a challenge brought under the Fourteenth Amendment’s Equal Protection Clause.

The Fifth Circuit seized upon this distinction to take a fresh look at the permanent loss of franchise through the lens of whether the penalty was too cruel and unusual to survive Eighth Amendment scrutiny. Invoking Supreme Court decisions to frame the right to vote as the lifeblood of democracy, the court concluded that it was especially cruel to permanently deny that right to convicted felons who had served their sentences.

After examining each possible rationale for taking felons' votes, the court concluded that the only legitimate aim for disenfranchisement was as a retributive measure. Following that logic, the court found that it was simply disproportionate to extend the loss of voting rights indefinitely beyond the completion of a term of incarceration or period of probation. Permanent loss of a fundamental right, the court reasoned, would also impair the ability of former criminals to rehabilitate and reintegrate themselves back into civil society.

How ‘Unusual” is it to Disenfranchise Felons?

The appeals court explicitly noted that a supermajority of states had rejected the practice of permanently stripping voting rights from felons. Only eleven states still have provisions like the challenged Mississippi law, and the district court noted that the number of states rolling back those penalties had increased since the Supreme Court last examined the issue of disenfranchisement of felons in Richardson.

Under Supreme Court precedent, punishments are evaluated not by historical standards, but by “evolving standards of decency” and contemporary values. The evolution of these standards explains, for example, why the Supreme Court imposed new restrictions on the use of the death penalty in recent decades. Although not as serious as execution, permanent disenfranchisement is also subject to evaluation by contemporary values, which is why the restoration of voting rights for felons in other states was relevant to the Fifth Circuit's analysis.

Supreme Court May Have the Final Word

Mississippi’s Attorney General has pledged to appeal the ruling, arguing that disenfranchisement is “not punishment.” The Fifth Circuit used an analysis of the 1870 Readmissions Act to reach the opposite conclusion.

After the Civil War, former Confederate states, like Mississippi, were required to curtail restrictions on voting as a condition of rejoining the union. Under that law, one of the only permissible reasons for disenfranchisement was as punishment for common law felonies. This framework, combined with the legislative intent of Mississippi's Constitutional Convention, convinced the appeals court that the statute was indeed punitive.

Ultimately, this issue could end up on a future Supreme Court docket, either on appeal from this recent ruling or as a result of a similar lawsuit progressing in Virginia.

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