A Rare Win for Criminal Justice in the Deep South

Lifetime voting bans ruled ‘cruel and unusual punishment’

What is cruel and unusual punishment? A lot of things, but you can add one more to the list: lifetime voting bans for people convicted of a felony.

The Fifth Circuit Court of Appeals ruled recently that Mississippi’s Jim Crow law that bans all people with felonies from ever voting again was unconstitutional. “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,” the court ruled.

And that’s “cruel and unusual,” the court said. In our country’s Bill of Rights, the Eighth Amendment, states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Over the years, the Supreme Court has said this amendment means, essentially, that the punishment must fit the crime.

Not only is Mississippi’s voting ban now officially cruel and unusual, it is clearly discriminatory. According to the Sentencing Project, 5% of Blacks in America are unable to vote because of state felony voting bans, compared to 1.5% of non-Blacks. The Mississippi lifetime ban was the most extreme, but there are still 11 states that have some sort of restriction on voting after a sentence is served. Voters in Florida voted overwhelmingly to allow people to vote after serving their sentences, but the state legislature later added a requirement that the convicted felon must have paid all restitution, fees, and fines before their rights are restored. As a result, Florida has the most disenfranchised people due to felony convictions: 1.1 million people.

Fortunately in Colorado, you can vote the day you get out of jail. The Colorado Secretary of State says if your name is still on the state’s incarceration list, the County Clerk’s Office may ask for proof that you have completed your sentence.

Even better, because it’s incarceration and not the felony that impacts whether a felon can vote in Colorado, individuals who were not sentenced to prison for their conviction will never lose their right to vote. There are guidelines for felony sentences and time in prison is not always the outcome. I work hard to keep my clients out of jail, negotiating probation, suspended sentences, or deferred judgments.

Even so, a felony conviction can impact your life long after you serve your sentence. The conviction shows up on background checks conducted by employers and landlords, for example. A lifelong “scarlet letter” can become cruel and unusual, indeed.

But if you have lived a crime-free life since your felony conviction, you might be able to have your record expunged so you can legally say you don’t have a criminal history.

Also, under Colorado’s new Clean Slate Act, nonviolent felony records will be sealed after 10 years. Employers and landlords will not have access to these sealed records, but law enforcement and some government agencies will still be able to see them.

The Mississippi ruling is a step in the right direction of making our system of punishment fairer and more humane. I and the state’s defense attorneys advocate for just sentencing laws at the state level. At the individual level, you want an attorney who works the system we have to your benefit.