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August 6, 2023

Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

This past Friday, a split panel of the Fifth Circuit handed down a remarkable ruling in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). Here are excerpts from the start and conclusion of the 50-page majority opinion:

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890....

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....

“No right is more precious in a free country” than the right to vote.  Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.  This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship — that each person is an equal participant in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes.  In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.  Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.  Accordingly, we REVERSE the district court’s grant of summary judgment to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER judgment for Plaintiffs on that claim.

Judge Edith Jones authored a dissent, and here are excerpts from the start and conclusion of her 15-page majority opinion:

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 [that stated roughly]: 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....

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law. I respectfully dissent.

These opinions are certainly not the last words on this matter.  This Washington Post article about the ruling reports that Mississippi is sure to appeal this ruling: "Mississippi 'expects to seek further review,' wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch."

I suspect "further review" will first focus on seeking en banc consideration of this matter from the full Fifth Circuit.  But maybe Mississippi will seek to go directly to the Supreme Court for review.  For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling.

August 6, 2023 at 01:10 PM | Permalink


" For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling."

Wonderfully understated. The panel sounds like some relic from 1961. Will get reversed en banc.

Posted by: Bill Otis | Aug 6, 2023 2:11:19 PM

This new Fifth Circuit decision flies in the face of Richardson v. Ramirez, 418 U.S. 24 (1974).

Posted by: Jim Gormley | Aug 6, 2023 9:18:11 PM

Ridiculous. Felon disenfranchisement is ok under the Constitution.

Posted by: federalist | Aug 7, 2023 9:04:36 AM

setting aside your objection to the constitutional analysis, Bill and federalist, do you think it is sound policy to impose lifetime disenfranchisement on people who commit felonies?

Posted by: defendergirl | Aug 7, 2023 9:52:41 AM

Personally, I believe in a robust pardon system that allows the routine granting of pardon to those who have lived long-term law-abiding lives after release and who have made restitution. Murderers should never get the franchise. Nor should serious criminals. So no, I don't support lifetime disenfranchisement for most felons. Restitution, though, has to be made, in my opinion.

Now I have a question for you, defendergirl--do you think that the assessment of a police interviewer that a defendant isn't lying is exculpatory information that needs to be disclosed to the defense under Brady?

Posted by: federalist | Aug 7, 2023 10:11:18 AM

Federalist, in response to your last question to defendergirl, I think that as a practical matter, the police interviewer's assessment might only ever be disclosed as a Brady item if it has been reduced to writing in the file. If the assessment is only an oral statement to the detectives or the prosecutors, it probably wouldn't be disclosed, but it should be. See also, Kyles v. Whitley, holding that for discovery purposes, the prosecutors are responsible for whatever is contained in the police files, even if they weren't turned over to the prosecutors.

Posted by: Jim Gormley | Aug 7, 2023 10:54:49 AM

So, if in writing, then it's Brady--correct?

Posted by: federalist | Aug 7, 2023 11:16:57 AM

Several different subquestions under Brady.

First, whether in writing or not it is exculpatory (i.e. it is favorable to the defendant). Second, it is in the possession of the prosecution "team" because the police investigators are deemed to be part of the prosecution team. The real issue is whether it is material. Arguably, it is not material because it would not be admissible. But I have seen courts read Brady broadly to include information that could lead to admissible information. And I could see a judge ruling that, if the defense knew that an officer believed the defendant's version, the logical first question to that officer would be "why." And the answers could identify admissible evidence.

I know that my advice to the attorneys in my office would be to disclose it and argue against admissibility. Not disclosing creates a ticking time bomb that might explode five to ten years from now. If you disclose it, we can argue admissibility and be done with the issue.

Posted by: tmm | Aug 7, 2023 11:29:53 AM

tmm, let me change the hypo--it's a prosecution for lying to the police interviewers . . ..

Posted by: federalist | Aug 7, 2023 11:35:57 AM

On the merits of the Fifth Circuit panel, this one is a no brainer.

The Eighth Circuit is only incorporated against the states under the Fourteenth Amendment. Section 2 of the Fourteenth Amendment includes a clause expressly allowing the abridgment of voting rights based on conviction of a crime. Basic rules of construction dictate that specific language (such as the language in section 2) prevails over more general language (such as that contained in the Eighth Amendment and Section 1). There are additional other canons of construction that pretty much dispose of the legal claim.

On the policy argument, I tend to like the basic rule in my state. While you are serving the sentence for your offense, you are not eligible to vote. Once you have completed your sentence, you have discharged your debt to society and your rights (including the right to vote) are restored. Otherwise, in jurisdictions with several prisons, the prisoners would have a controlling block of votes in local elections which would be a big disincentive to have a prison in your area.

Posted by: tmm | Aug 7, 2023 11:38:17 AM

Federalist, I don't think the offense matters.

Even for a prosecution for lying to the police, the police opinion that the defendant lied (or did not lie) should not be admissible with the government and the defense having to use other evidence to prove whether defendant was lying or telling the truth. But the belief that the defendant was telling the truth or lying is (presumably) based on something more than a gut feeling. And the reason for the belief could lead to material evidence.

Of course, materiality is going to depend on the other evidence. While the rules allow a prosecutor to make the initial judgment call as to whether the evidence fits Brady, that decision will ultimately be reviewed by judges. My position is that prosecutors should be very cautious in creating issues that will be reexamined by unknown judges at a later date -- especially Brady claims which can potentially be raised at any time under the cause and prejudice standard for habeas review.

And I would rather litigate the issue of admissibility now when I have the opportunity to investigate and get additional evidence if the court rules against me on admissibility rather than ten years from now when that evidence is effectively lost. I have been involved in too many cases from the late 80s and 90s when the lack of documentation of disclosures to the defense has led to a court granting a new trial under Brady where we simply could not retry the case even though we still thought the defendant was guilty because of witnesses no longer being available.

Posted by: tmm | Aug 7, 2023 12:01:57 PM

Federalist - yes, it is exculpatory and/or could lead to the discovery of exculpatory material as tmm suggests. Admissibility is a different question, and I can imagine many circumstances where it is not admissible or even relevant.

Posted by: defendergirl | Aug 7, 2023 12:43:20 PM

So defendergirl, why aren't you ripping to shreds Judge Emmett Sullivan. As you likely know, "Judge" Sullivan has standing orders that Brady material is to be turned over to the defense. However, the feds prosecuting Flynn never turned over statements by the interviewers (Priestap and Strzok) that Flynn wasn't lying. This violated the "Judge's" standing order--so what did the hack do--he authored an opinion stating that the items weren't exculpatory, thus giving cover for the scumbag prosecutors. Since when is a federal judge supposed to be doing that? And where the f*&^ was the criminal defense bar on this? It should have been screaming bloody murder. But no.

Posted by: federalist | Aug 7, 2023 1:00:58 PM

tmm--in a prosecution based on notes of what was said, the interviewer's assessment that the guy wasn't lying is clearly material and relevant, particularly when the notes were revised a few times with the help of someone who wasn't there.

Everyone knows the prosecution of Flynn stunk to high heaven. And everyone knows that the judge in the case was biased and awful, yet all good because it hurt Trump. And now thugs like Michael Levine want to muzzle Trump?

Posted by: federalist | Aug 7, 2023 1:05:43 PM

If you can’t permanently disarm a felon under Second Amendment (as Third Circuit in Range has held), why is it ok to permanently disenfranchise felons?

Posted by: Da Man | Aug 7, 2023 1:43:34 PM

Different rights, and different constitutional provisions.

Posted by: federalist | Aug 7, 2023 1:57:12 PM

defendergirl --

"setting aside your objection to the constitutional analysis..."

Spoken like a true defense lawyer. "If we could just disregard that pesky Constitution......."

"...do you think it is sound policy to impose lifetime disenfranchisement on people who commit felonies?"

I think it's sound enough. The felon in the first instance can make the problem disappear by going to the massive trouble of not committing the felony to begin with. I'm generally skeptical of the view that the state should do for people what they can and should do for themselves. Still, being Mr. Nice Guy, I would allow the felon to petition for restoration, which should normally be granted upon a showing of sustained good behavior once his sentence is over.

P.S. You have my name. What's yours, and what's your professional background?

Posted by: Bill Otis | Aug 7, 2023 2:36:18 PM

Federalist, I don't practice in federal court, but in state court, at least in my state, the assessment of whether a person was lying or telling the truth is generally inadmissible as it invades the province of the jury. Instead, the government or the defense will put on evidence of what the defendant said and what the truth is (which often is disputed) and the jury will determine the truthfulness of the defendant's statement.

Posted by: tmm | Aug 7, 2023 6:02:23 PM

Under Kentucky law, if a felon testifies at trial, he can be impeached by the fact that he has had a felony conviction within the past 10 years. Felony convictions older than 10 years cannot be used. Only the fact of a felony conviction can be mentioned before the jury, not the actual crime of conviction. Smart defense lawyers take the sting out of the felony conviction, by asking their own client the question on direct examination, leaving nothing more for the prosecution to ask. And then defense counsel gets to tell the jury how candid he was with them about his cclient's prior felony conviction.

Posted by: Jim Gormley | Aug 7, 2023 8:50:19 PM

tmm, it's exculpatory . . . .

Posted by: federalist | Aug 8, 2023 9:30:49 AM

Isn't it funny--defendergirl flees the field when asked about the defense bar's silence on the execrable Emmett Sullivan

Posted by: federalist | Aug 8, 2023 9:42:48 AM

and even Doug can't address it . . . . i guess he's too busy arguing that rights cannot be waived

Posted by: federalist | Aug 8, 2023 9:51:37 AM

I'll chime in and say, for the folks saying that there should be a petitioning process -- there is often in the states that disenfranchise, but that process is utterly and hopelessly broken. My experience, and the experience of others in Kentucky and elsewhere, is that those applications go nowhere. You don't get a grant, or a denial, you get silence. Leaving restoration to the franchise in the hands of discretionary acts of an executive is the same as not having a path to restoration at all, as you are simply left to depend on the whims of whatever executive happens to be in office. I'm not sure such an arbitrary process is good public policy, especially with something as important as the right to vote.

Also, for the law and order folks, there's at least some reason to believe that disenfranchisement results in more crime. States with permanent disenfranchisement schemes have higher rates of rearrest of those leaving prison than those that don't. Giving people a stake in their communities means giving people one less reason to go back to prison, and isn't that a good thing?

Posted by: Guy Hamilton-Smith | Aug 8, 2023 10:13:03 AM

Federalist, exclupatory is not the same thing as admissible. Opinion testimony is generally limited in trials -- both civil and criminal. Opinion testimony requires both expertise in the field and that, as a result of the expertise, the witness is able to aid the jury in understanding complicated evidence. Law enforcement officers are not experts in who is telling the truth (for the most part) and the jury is equally capable of considering the evidence as to what the truth is and determining if the defendant was making a truthful statement.

Brady is a rule of discovery. Not a rule of evidence. It is possible for material to qualify under Brady because it will lead the defense to crucial evidence without the material being admissible in court. In your hypothetical, while the officer's opinion might be Brady material, the opinion itself would not be admissible, and the defense attorney would want to know why the officer believed the defendant was truthful so that the defense attorney could develop the evidence to support those reasons.

Posted by: tmm | Aug 8, 2023 10:39:18 AM

tmm, the issue is whether it needed to be turned over--in a prosecution for lying to cops, where the measure of the lie is based on notes taken by the cops (notes which were revised based on the input of someone not there), you had best believe that the assessment by the cops was that he wasn't lying is exculpatory and almost certainly admissible.

My hypo is the Flynn situation, and it is to show that Emmett Sullivan is a horrendous judge who should be hooted off the bench.

Posted by: federalist | Aug 8, 2023 10:45:24 AM

Ya see? All the so-called defendants' rights people just cannot defend Sullivan, and they bail. Even Doug . . . .

Posted by: federalist | Aug 9, 2023 10:11:14 AM

federalist, I asked you in prior thread what exact Sullivan opinion/ruling you have such strong feelings about because I am sure I have not read it closely, if at all (since I did not follow the Flynn litigation all that closely). You failed to respond in that thread. Can you try again to point me to what has your blood boiling if you are so very eager for me to engage with your feelings on this (non-sentencing) front?

Posted by: Doug B | Aug 9, 2023 10:43:37 AM

Fair doug--I'll pull from PACER

Posted by: federalist | Aug 9, 2023 2:37:23 PM

Guy Hamilton-Smith,

I’m pretty sure that, “I don’t really want to commit a crime today, but I can’t vote, so I will.,” is not a thing.

Posted by: TarlsQtr | Aug 9, 2023 3:56:25 PM

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