Publisher’s Note: We are proud to publish the work of Kerry Myers, our newest contributing writer. Myers is the award-winning former editor-in-chief of The Angolite and the recipient of the Thurgood Marshall Journalism Award, the PASS Award in Journalism, and three APEX Awards for Magazine and Journal Writing.
Sticks and stones leave marks, some permanent. But words, especially labels, can also hurt. They shape not only public opinion, but the direction of policy that determines how we live, work, play, and participate in society. They also directly influence how we dispatch and disenfranchise those deemed unfit for society. Like a red gravy stain on a white shirt, for better or worse, labels don’t easily come off, if at all. When they are arbitrarily applied to formerly incarcerated people, particularly by those in positions of authority or influence, the labels tend to define our perception of their past and help dictate their present and future.
Terms like “Smart on Crime” and “reentry” are part of a deliberate departure from the negative, stereotype labels often applied to formerly incarcerated people, and “returning citizen” is now the preferred designation for those once locked away. This is the product of collective best practices, created for the reentry ethos and given serious consideration by experienced, earnest people who work with those leaving prison to help them find jobs, educational and training assistance, housing and medical care, and to become full participants in their communities. Down in the trenches, these professionals know that words matter and labels stick.
But “returning citizen” doesn’t quite hit home for more than 72,000 Louisianians on probation and parole who are banned by state law from exercising their citizenship in the voting booth. Norris Henderson is the executive director of Voice of the Experienced (VOTE), an advocacy group that has filed a lawsuit challenging the voting prohibition. Henderson, who served 20 years at the Louisiana State Penitentiary before being released on probation, successfully petitioned to terminate his probation after two and a half years primarily because he wanted to participate fully in the democratic process. “We have been educating people about the term returning citizen,” he said. “It’s refreshing if it’s a truism. But it’s not a truism, because that paroled individual is not a citizen when he or she does not have the right to vote, which is vital to citizenship.”
At the center of the issue are the formerly incarcerated men and women who pay income taxes, sales taxes, property taxes, business taxes, and the interminable parole supervision fees, but are still banned from choosing the leaders who make the laws and policies that determine how those taxes are spent. Louisiana, unlike other states, does not allow early parole termination based on compliance or good conduct, leaving many of those disenfranchised forever on the outside looking in.
There are two types of parole—discretionary, which requires the approval of the Committee on Parole, and diminution or “good time” release, which can range from one half to 85 percent of the sentence served, depending on when the sentence was imposed. Once released on either type, the person remains on supervision for the balance of the full term. Because parole involves statutory and regulatory procedures, it triggers legal safeguards that cannot be undone without due process proceedings. Louisiana has some of the longest sentences in the nation. Many of the 72,000 people who have lived exemplary lives since being released will remain on parole for the rest of their lives, never able to cast a vote to determine their political leaders, forever disenfranchised.
“They are your neighbors,” Henderson said. “They contribute to their communities, work, many are homeowners, business owners, property owners, and have become community leaders.”
The Louisiana Constitution, Article 1, Section 10, says that “every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony .” It is that phrase, “under an order of imprisonment,” and the 1974 state Constitutional Convention delegates’ original intent, that may ultimately change the future of elections in Louisiana.
In March, there was a hearing on VOTE’s lawsuit in the 19th Judicial District Court in Baton Rouge. Representing eight plaintiffs, most of whom have remained on parole for more than 20 years, attorney William Quigley told state District Court Judge Tim Kelley that two laws, passed in 1976 and 1977, unconstitutionally disenfranchise persons on parole and probation and violate the letter and spirit of the state Constitution. The official Digest of the Constitutional Convention, he told Kelley, indicates that delegates expressly rejected a proposed ban for those on post-release supervision. Additionally, voters overwhelmingly approved the new Constitution in a referendum. VOTE believes the subsequent laws should be struck because they went beyond the Constitution’s plain meaning of “an order of imprisonment” and unconstitutionally restrict the right to vote to people on parole and probation.
Writing in a 1986 Louisiana Law Review article, Robert Stockstill said that Section 10 was meant to be “a self-operative restriction on voting for those imprisoned or interdicted.” The section was tested in 1976 in Fox v. Municipal Democrat Executive Committee, the state Second Circuit Court of Appeals ruling that unless the Legislature took specific action to limit the right it was not automatically forfeited. Legislators apparently took notice and quickly passed a restriction for persons on parole that same year, adding probation a year later.
At the March hearing, the attorney for the state, needing a bit of help from Kelley to present her argument, said that the Legislature had the constitutional authority to define the meaning of “under an order of imprisonment” and that parole, because it is conditioned, is not release from custody. Stating that he personally believes it unfair to disenfranchise those who have lived exemplary lives after a felony conviction, Kelley rejected VOTE’s challenge. Quigley quickly gave notice of appeal, and almost as quickly the heavy lifting was picked up by The Advancement Project, a national civil rights advocacy group that provides legal and communications resources for local, on-the-ground efforts. It was clear that all parties knew that whatever decision Kelley made, the issue would wind its way to the state Supreme Court, which has the final word on state constitutional issues, sometime next year.
According to Donita Judge, one of the Advancement Project attorneys handling the appeal, getting involved with the VOTE suit was a natural extension of work the organization had done in New Orleans after Hurricane Katrina, and again in 2010 during legislative redistricting. “We agreed because we understand the wrongs being committed throughout this country in terms of felon disenfranchisement,” she said. “This is very much a political issue, but it is also a historical issue that ties in with current politics. We know that historically those individuals in Louisiana and other Southern states were denied the right to vote for crimes committed that were thought to be disproportionally committed by African Americans.” As the country becomes more racially diverse, demographers predict that by 2040, non-white minorities will become a majority in the U.S. “This certainly, as seen in the most recent election, indicates that minorities will have a bigger voice,” said Judge. “But there is a faction that is threatened by this, that being the power of the status quo. This is what we see in Louisiana and nationally. It is very much a political issue.”
Bruce Reilly, VOTE’s deputy director, is a husband, father, and a graduate of Tulane Law School. He is also a formerly incarcerated person and one of the plaintiffs in the lawsuit. Despite his accomplishments, Reilly declined to take the state bar exam because his conviction, which occurred when he was still a teenager, makes it unlikely that he would pass the character and fitness requirements. Though he may not become a member of the bar in Louisiana, for Reilly, there would be some consolation in regaining his voting rights and becoming a full participant in the civic and political processes. Despite the status quo wall of opposition, he believes they will win the legal challenge. But there is a deeper recognition that VOTE’s criminal justice reform goals go beyond the lawsuit. Real change, Reilly knows, is often a battle of hearts and minds.
Nationally, more than 6.1 million people in the U.S. cannot vote due to a felony conviction; 75 percent of these people are not currently incarcerated. “Most people in our country would be surprised to know that we do not have a fundamental right to vote enshrined in our Constitution,” said Judge. That silence leaves it up to the states to create their own voter eligibility laws, including reasons for disqualification. “We have over 33,000 jurisdictions in this country with their own rules. If there was a fundamental right to vote in our Constitution, certainly there would be laws about felony disenfranchisement.”
Unlike the disparity found among states, a federally enshrined right to vote, and particularly exceptions that limited that right, would be held at a higher standard. Currently, twelve states allow permanent disenfranchisement for some convictions and four—Florida, Iowa, Kentucky and Virginia—impose lifetime bans for any felony conviction unless individually restored through a clemency process. Twenty-two states suspend voting rights during incarceration and post-release supervision, and fifteen during incarceration only. Maine and Vermont have no felony voting restrictions, even allowing prisoners to vote. To see how voting disenfranchisement laws can change the outcome of elections, look to the 2000 presidential election in Florida. When all the counting was done, hanging chad or not, George W. Bush won by 537 votes. Because of felony convictions, nearly a million Floridians were ineligible to vote, including 20 percent of black men, a number that could have flipped the national results. But the people of Florida may get the chance to speak to the disenfranchisement issue through a constitutional referendum this fall, if grassroots organizers can certify enough signatures.
The VOTE lawsuit, which is now heading to the state First Circuit Court of Appeals, could take up to a year or more. Judge, along with co-counsel Denise Lieberman, are in it for the long haul and are exploring all options. “We don’t yet have a copy of the ruling. It was an oral ruling from the bench,” said Lieberman in a late July interview. “But the broader issue is the Louisiana Constitution. There is quite a bit of evidence to show how the framers of the Constitution felt about [voting], or that necessarily the people who voted on the Constitution thought about it. They most certainly never could have anticipated the huge swath of the population that is now kept from participating in their democracy.”
Henderson believes that applying “under an order of imprisonment” to disenfranchise people on parole has serious legal flaws. At the hearing in Baton Rouge, the state’s attorney, arguing that parole is not release, told the judge that if parole conditions are violated, a person can be sent back to prison. “But not without due process,” said Henderson, who was the law librarian during his time in prison. “Because parole release is a due process decision that triggers statutory provisions, it is release, by law, and they are not under an order of imprisonment. Their freedom cannot be arbitrarily taken nor voting eligibility arbitrarily suspended.”
VOTE began its battle to give the “returning citizen” label more gravity through legislation. For several years, proposed bills failed on the issue were not even heard in committee. Two years ago, a measure came close to passage but died when it ran into unrelated partisan politics on the House floor. Last year, a bill failed to make it out of committee by one vote. Hope ran high for the 2017 session, which was packed with criminal justice reform initiatives. At least three members of the House and Governmental Affairs Committee had supported VOTE’s efforts the previous year. But this year’s hearing quickly devolved into a miasma of tangential quibbles and political gamesmanship. State Rep. John Schroder, who would resign his seat as soon as the session ended to announce his candidacy for state treasurer, was concerned that restoring voting rights to people on parole would “soften the punishments” that were imposed on them by the court. He claimed that society’s problems are not due to there being too many people in the state’s jails, and restoring voting rights only lessens the deterrent effect and encourages criminal behavior.
The bill in question, sponsored by Rep. Patricia Smith, created a five-year waiting period before people on parole could have their voting rights restored. That provision was based on comments made last year by Rep. Barry Ivey when he opposed a similar bill. After initial competing motions—one to favorably report the bill and one to not—canceled each other out, discussion ranged from law and order chest-thumping to adding a mandatory community service provision to specific questions about whether people convicted of certain crimes should ever have the right to vote restored.
Addressing the committee, one bill supporter questioned whether some legislators who “profess to be Christians” understood the concept of forgiveness. In response, Ivey made it clear that his tentative support for the bill was not based on forgiveness or his Christian beliefs, but to “bring some balance” to the “consequences” of people’s actions against society.
Testimony about dismal voter turnout among the general populace was countered by Ivey’s assumption that people who had been incarcerated for long periods of time would not automatically run out and vote in every election. Additional evidence that formerly incarcerated people who vote are more civic-minded and have exceptionally low recidivism rates was countered by Schroder’s discomfort that the bill would restore voting rights to people convicted of all felonies. His discomfort seemed to lie partially in the mistaken belief that judges determine the length of parole and that if a person is on parole for an extensive period, their crime was bad enough to permanently lose their voting rights. After listening to the devolving debate, Smith decided to defer her bill.
“We’ve been researching and trying to get people to do what is right,” Henderson said about the hearing. “We are trying through legislation but always run into a brick wall. It had nothing to do with their arguments and everything to do with politics. One representative is running for statewide office this fall, others are seeking reelection. They don’t want to change the demographics, especially adding voters not likely to vote for them.” Ironically, as the committee killed hope for a legislative solution, another bill was working its way through the legislature that gave convicted felons the right to run for public office after a 15-year cleansing period. Henderson put it into perspective. “We’re giving the right to run for office to a convicted felon,” he said, “but at the same time we refuse to allow the right of others to vote for that person.”
“When you lose your voting rights … people die for this,” lawsuit plaintiff Checo Yancy said in an article published by Think Progress last November. “I made a mistake years ago, committed a crime, but the judge never said I couldn’t vote again.” Incremental progress was made this year when the Legislature passed a bill creating parole credits that reduce supervision terms by one month for every month of successful compliance, bringing Louisiana in line with the rest of the country. But the new law does not apply to anyone paroled from a conviction of a statutorily-defined crime of violence—just over half of all persons in Louisiana prisons.
In a legislative session that focused on criminal justice reform, alternatives to incarceration, ending mass incarceration, and easing reentry, the failure to address mass disenfranchisement was frustrating. “The highest form of reentry is civic engagement,” Henderson said. “They wanted to do everything else, accelerate good time, lighten sentences, drop other sanctions, but no one championed giving these very same people the right to vote.”
According to The Sentencing Project, a Washington, D.C.-based policy group, more than four and a half million people across the South, from Florida to Texas and Tennessee to Louisiana, cannot vote due to felony convictions. The numbers for the South far surpass those of any other region of the country. Historical records clearly show that Reconstruction-era constitutional conventions crafted rules to keep freed blacks, a majority of the population in the South after the Civil War, from voting. In this century, early segregationist Democrats perpetuated the laws. Now, it is conservative Republicans concerned about the voting bloc of formerly incarcerated people, composed disproportionately of minorities. Public understanding of the sordid history of felony disenfranchisement may be the key to leaving that path behind, but as it stands there is a lot of work yet to be done.
A wave of public awareness about criminal justice reform and support for change seems to be colliding with the breakers of the political and demographic status quo. In Virginia, a 2016 executive order by Governor Terry McAuliffe restored voting rights to more than 200,000 formerly incarcerated people until the state Supreme Court said that the en masse order, as opposed to restoring rights individually, exceeded his executive authority. McAuliffe was also challenged in court by a county prosecutor who wanted him to produce the list used to restore those rights. Only those who had completed their full sentences were to have their rights restored, but the list mistakenly included 132 incarcerated people, providing political ammunition to the Republican prosecutor who challenged the governor. To date, through an individualized process, McAuliffe has restored voting rights to more than 156,000 people who have completed their sentences. In Alabama, a new state law narrowly defined a formerly vague “moral turpitude” provision that left the matter of who could vote to the discretion of individual country registrars. Based on the reform wave and the status quo opposition, it has become abundantly clear that felony disenfranchisement laws are about power and politics.
VOTE and its allies know that change relies on educating the public. Much like Louisiana’s criminal justice reform campaign this year, the more people understand the facts and the data, the easier it is for them to support reform. VOTE’s game plan going forward is to fight on two fronts, in the legislature and in the courts. “We are looking at other options,” Henderson said, “similar to what was done in other states. But that is still in the exploratory stage.”
The criminal justice reform successes of other southern states have not easily translated to the politics or policy of Louisiana, the state that leads the nation, which in turn leads the world, in incarceration. After nearly a year conducting a top-down study of the state’s criminal justice system by the legislatively-created Justice Reinvestment Task Force, an unprecedented package of reform bills made it through this year’s regular session. But much was left on the cutting room floor, and voting rights were not part of the main package. Lawmakers on the House and Governmental Affairs Committee were not so burdened with reentry, reform, or positive labels like “returning citizen” attached to the formerly incarcerated. “If you say you that people returning from prison are citizens, then you require certain things of citizenship,” said Judge. “It just seems like the ability to participate in electing those individuals who are supposed to have your best interest at heart, that they should be supporting this. It is wrong to deny people who have been released a voice in their democracy.”
An LSU Manship School of Mass Communications poll earlier this year found that a significant majority of Louisianians support criminal justice reform measures like reentry programs, shorter sentences, and expanded parole opportunities over continued mass incarceration. It is a significant shift, one that could serve to remind legislators—who are so concerned about who votes they refuse to remove the prohibition on people under parole supervision—that current voters are becoming more concerned about who makes the laws.
Tens of thousands of people paroled go on to live law-abiding, productive, exemplary lives. They meet and exceed expectations. But, especially in the South, they may never again regain the right to vote. “It has been an exclusive club, not a broad-based one,” said Lieberman. “Even as other tests started to slip away, new laws became restrictive. Voting equalizes people. Rich votes count for the same as poor votes. [A] Ph.D. carries the same weight as a GED. People who benefitted from unearned privilege in this country have repeatedly tried to limit the right to vote. That’s why we fight so strongly.”