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October 1, 2023
En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment
As noted in this Reuters article, the full Fifth Circuit has decided to review the notable split panel ruling last month in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). That ruling declared that Mississippi's disenfranchisement for life under of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment." In my prior post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and here is a bit more context from the Reuters piece:
A federal appeals court on Thursday agreed to reconsider a ruling by three of its judges that struck down part of Mississippi's state constitution that strips the right to vote from thousands of convicts after they complete their sentences.
The decision by the 5th U.S. Circuit Court of Appeals to hold a so-called en banc rehearing of the case before all 16 of its active judges automatically voids, for now, last month's 2-1 panel ruling finding the provision was a "cruel and unusual punishment" that disproportionately affected Black people....
The disputed part of the state constitution mandates lifetime disenfranchisement for people convicted of a set of crimes including murder, rape and theft. A group of convicts sued the state in 2018 to regain their right to vote.
U.S. Circuit Judge James Dennis wrote for the majority last month that the provision, which he said was adopted in 1890 after the U.S. Civil War to "ensure the political supremacy of the white race," violated the U.S. Constitution's Eighth Amendment, which bars cruel and unusual punishments.
The provision, whose list of disqualifying crimes had been amended twice, remained effective in achieving its "racially discriminatory aim," Dennis said. Of the nearly 29,000 Mississippians convicted of disenfranchising offenses who had completed their sentences from 1994 to 2017, 58% were Black, he said. According to the 2020 census, just under 38% of Mississippi residents are Black.
Prior related posts:
- Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
- Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional
October 1, 2023 at 06:39 PM | Permalink
Comments
While the Fifth Circuit's decision considering the Mississippi Constitution is based upon 8th Amendment Cruel and Unusual Punishment, it is worth noting that the Supreme Court has previously held, in a 6-3 decision, that the states can withhold the right to vote from felons after they complete their sentences without violating the Fourteenth Amendment. See, Richardson v. Ramirez, 418 U.S. 24 (1974). Regardless of the En Banc outcome at teh Fifth Circuit, I think this case will eventually be resolved by the Supreme Court; so, stay tuned.
Posted by: Jim Gormley | Oct 1, 2023 7:46:47 PM
Jim Gormley --
No real need to stay tuned. The race-huckstering panel opinion is toast and will get crisped by the en banc court. I doubt SCOTUS will even grant cert, but if it does, the defendant will lose even more resoundingly than he's going to already.
Posted by: Bill Otis | Oct 2, 2023 1:21:00 PM
I don't think the Eighth Amendment analysis holds much water, unless we are talking about creative evolving standards of decency. While not required by the Fourteenth Amendment, felon disenfranchisement is certainly allowed by the Fourteenth Amendment. Since the Eighth Amendment only applies to the states due to the Fourteenth Amendment, I don't get how you can argue with a straight face that the framers of the Fourteenth Amendment considered felony disenfranchisement to be cruel and unusual punishment.
The strongest argument would seem to be an equal protection discriminatory purpose argument, but those only have a mixed record of success -- even though there is very good history supporting the arguments in this case.
Posted by: tmm | Oct 2, 2023 1:58:32 PM
