I knew that felons could not vote in California, but what I did not know was that they still had to pay income, federal, state, and all local taxes on income and what-ever else they my purchase...
Does that not seem a little unfair to anyone?
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Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Originally posted by blaqfist:
Does not the currrent "law" banning felons from voting fly in the face of the 13th amendment?
VII. CONSTITUTIONALITY OF CRIMINAL DISENFRANCHISEMENT
Despite the scant justification for U.S. criminal disenfranchisement laws, they have withstood constitutional challenge. Ordinarily, the courts carefully scrutinize state restrictions on the right to vote to assess their constitutionality under the equal protection clause of Section 1 of the Fourteenth Amendment to the U.S. constitution.62 States must show that the restriction is necessary to a legitimate and substantial state interest, is narrowly tailored and is the least restrictive means of achieving the state's objective.63 In Richardson v. Ramirez,64 however, the U.S. Supreme Court exempted criminal disenfranchisement laws from such strict scrutiny. It construed Section 2 of the Fourteenth Amendment as granting states an "affirmative sanction" to disenfranchise those convicted of criminal offenses,65 and therefore reversed theCalifornia Supreme Court's ruling that the disenfranchisement of ex-felons was unconstitutional as a violation of equal protection guarantees.66
Eleven years later, in Hunter v. Underwood,67 the Supreme Court unanimously declared that Section 2 did not protect disenfranchisement provisions that reflected "purposeful racial discrimination" that otherwise violated the equal protection clause.68 The court held unconstitutional a provision of the Alabama constitution that disenfranchised offenders guilty of misdemeanors of "moral turpitude" after finding that the intent of the provision had been to prevent blacks from voting and that it continued to have a racially disproportionate impact.69
Criminal disenfranchisement laws may also be vulnerable under the Voting Rights Act of 1965, 42 U.S.C. 1973, which was adopted to remedy persistent racial discrimination in American voting. As amended in 1982, the legislation bars voting qualifications, practices, etc. that result in a denial or abridgment of the right to vote on account of race or color regardless of whether such a provision was
enacted with racist intent70 It is an unsettled question in the federal courts, however, whether the Voting Rights Act can be used to strike down criminal disenfranchisement laws.71
62 Section 1 of the Fourteenth Amendment reads in pertinent part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
63 See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972).
64 418 U.S. 24 (1974)
65 Section 2 reads, in relevant part: "When the right to vote...is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion whichthe number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." The majority's interpretation of the history of Section 2 has been strongly criticized by many. In his dissent, Justice Marshall insisted that Section 2 was not intended to exempt felons from equal protection coverage but was created as a special remedy of reduced representation to cure the disenfranchisement of blacks at a time when an explicit grant of suffrage to African Americans was not politically possible. Section 2 "put southern States to a choice"”enfranchise Negro voters or lose congressional representation...[But simply] because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by Section 2 does not necessarily imply congressional approval of this disenfranchisement." Richardson v. Ramirez, 418 U.S. at 75-76 (Marshall J. dissenting).
66 California law was subsequently amended to permit ex-felons to vote, while continuing to disenfranchise those in prison or on parole. See, Flood v. Riggs, 80 Cal. App. 3d 138 (1978). Richardson v. Ramirez,418 U.S. 24 (1974) involved disenfranchisement of persons convicted of felonies. In McLaughlin v. City of Canton, Mississippi, 947 F. Supp. 954 (S.D. Miss. 1995), the court ruled that strict scrutiny was required where disenfranchisement was based on a misdemeanor rather than a felony conviction.
67 Hunter v. Underwood, 471 U.S. 222 (1985).
68 Under U.S. law, a racially disparate impact is not sufficient to establish a violation of equal protection guarantees; a discriminatory intent or purpose is also required.
69 Alabama continues to disenfranchise persons convicted of certain enumerated offenses as well as any crime punishable by imprisonment, i.e., any felony. Alabama Const., Art. VIII, § 182.
70 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3. The Supreme Court in City of Mobile v. Bolden, 446 U.S. 55 (1980), interpreted the original act as requiring a finding of discriminatory purpose before state action could be prohibited. Congress amended the act to clarify its determination that discriminatory results sufficed to invalidate state practice without regard to discriminatory intent. In contrast to the Voting Rights Act, a finding of discriminatory racial intent as well as impact is required to establish a constitutional violation.
71 In Baker v. Pataki, 85 F. 3d 919 (2d Cir. 1996), inmates claimed New York laws denying the franchise to incarcerated and paroled felons violated the Voting Rights Act because of their racially disproportionate impact. The court, sitting en banc, divided evenly on whether Section 2's "results only " test could be applied to state criminal disenfranchisement laws. For a discussion of the Voting Rights Act and black disenfranchisement, see Shapiro, Challenging Criminal Disenfranchisement; Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and its Influence on the Black Vote: The Need for a Second Look, 142 U. Pa. L. Rev. 1145 (January 1994).
VIII. U.S. CRIMINAL DISENFRANCHISEMENT UNDER INTERNATIONAL HUMAN RIGHTS LAW
International law sets out basic principles for electoral democracy, including the right of citizens to vote. Under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), for example, every citizen has the right to vote and that right may not be subject to discrimination on the basis of race, sex, religion and other enumerated categories or to "unreasonable restrictions."72 As a party to the ICCPR, the United States has accepted its provisions as binding on both federal and state governments as the law of the land.73
The U.N. Human Rights Committee, which reviews adherence to the ICCPR, has affirmed that Article 25 "lies at the core of democratic government based on the consent of the people" and thatrestrictions on the right to vote should only be based on grounds that are "objective and reasonable."74 Acknowledging the existence of criminal disenfranchisement laws, the committee has stated that "if conviction for an offence is the basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence."75 It has consistently frowned on and tried to limit the reach of criminal disenfranchisement laws that it has reviewed.76
Although the Human Rights Committee has not addressed itself to criminal disenfranchisement laws in the United States,77 there is little doubt it would conclude that laws excluding ex-convicts from voting for life are unreasonable and disproportionate. A strong argument can also be made on similar grounds that laws depriving all persons of the right to vote while in prison, on probation or on parole"”regardless of the underlying offense"”are also inconsistent with Article 25. The international law scholar Karl Josef Partsch, for example, flatly rejects blanket criminal disenfranchisement provisions, asserting that an exclusion from the vote may be reasonable only if it "has been pronounced by a judge for a certain time, in connection with punishment for some particular offense, for instance those connected with elections or for high treason...."78
The racially disproportionate impact of disenfranchisement laws in the United States is also inconsistent with the principles of non-discrimination contained in the ICCPR and in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), an international treaty adopted for the purposeof more effectively combating race-based discrimination that the United States ratified in 1994.79 Article 25 of the ICCPR specifically enjoins racial discrimination with regard to electoral rights.80 CERD also requires states parties to guarantee, without distinction as to race, color or national or ethnic origin, "political rights, in particular the right to participate in elections"”to vote and to stand for election"”on the basis of universal and equal suffrage,..."81 CERD wisely does not impose the requirement of discriminatory intent for a finding of discrimination. It requires states parties to eliminate laws or practices which may be race-neutral on their face but which have "the purpose or effect" of restricting rights on the basis of race. Regardless therefore, of whether they were enacted with racial animus, U.S. criminal disenfranchisement laws appear to be precisely the kind of laws condemned by CERD: they unnecessarily and unjustifiably create significant racial disparities in the curtailment of an important right.82
72 Article 25 reads, "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country." The legislative history of Article 25 indicates that the ICCPR's framers considered voting restrictions based on age, mental capacity, and minimum residency requirements to be reasonable. Criminal disenfranchisement was hardly mentioned. At the time the ICCPR was drafted, electoral democracy was not practiced by many countries, and barriers to voting that today are widely considered illegitimate were prevalent"”e.g., exclusion of ethnic groups, women, illiterates. Interestingly, the U.S. delegate mentioned the exclusion of illiterates in the U.S. as an example of a legitimate restriction"”a practice which is now unconstitutional in the U.S. and which undoubtedly would no longer be deemed reasonable under a contemporary understanding of democracy. E/CN.4/SR.364, at 14.
73 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Art. 25. The U.S. ratified the ICCPR on June 8, 1992.
74 General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, CCPR/C/21/Rev.1/Add.7, August 27, 1996, Annex V (1).
76 During the committee's consideration of a report from Senegal, for example, a member expressed concern that the country's laws were "excessively strict" because persons sentenced to "personal restraint or penal servitude" were deprived of the right to vote. He also pointed out that "rights contained in article 25...could not be withdrawn for life." Consideration of Report by Senegal to the Human Rights Committee, CCPR/C/37/Add.4, April 7, 1987. In reviewing the periodic report of Luxembourg, the committee suggested that the country "consider abolishing the deprivation of the right to vote as part of legitimate punishment." Consideration of Report by Luxembourg to the Human Rights Committee, CCPR/C/79/Add.11, December 28, 1992, D (10). Addressing voting restrictions in laws in Hong Kong, the committee expressed concern "that laws depriving convicted persons of their voting right for periods of up to ten years may be a disproportionate restriction of the rights protected by Article 25." See, Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland (Hong Kong), U.N. Doc. CCPR/C/79/Add.57 (1995), para. 19.
77 The existence of such laws was noted in the U.S. report to the Human Rights Committee. Initial report of the U.S. to the Human Rights Committee, CCPR/C/81/Add.4, August 24, 1994. In its brief discussion of U.S. compliance with Article 25, the committee focused on other aspects of U.S. elections, e.g. campaign financing costs, and did not analyze the disenfranchisement provisions. Consideration of the U.S. Report to the Human Rights Committee: Comments of the Human Rights Committee, CCPR/C/79/Add.50, April 7, 1995.
78 Karl Josef Partsch, "Freedom of Conscience and Expression, and Political Freedoms," in Louis Henkin, ed., The International Bill of Rights: The International Covenant on Civil and Political Rights, (1981).
79 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, Art. 5(c). The United States ratified CERD on October 21, 1994.
80 Article 2 of the ICCPR also obliges states parties to respect recognized rights "without distinction of any kind, such as race...".
81 See CERD, Art.5 (c).
82 See CERD, General Recommendation XIV (42) on article 1, paragraph 1, of the Convention. See also, Theodor Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, 79 American Journal of International Law, American Society of International Law, Washington, D.C., April 1985, pp. 283, 287-88.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
IV. CRIME, CRIMINAL JUSTICE POLICIES AND INCARCERATION
As one might expect, the number of people disenfranchised reflects to some extent the number of people involved in criminal activity. But the proportion of the population that is disenfranchised has been exacerbated in recent years by the advent of harsh sentencing policies such as mandatory minimum
sentences, "three strikes" laws and truth-in-sentencing laws. Although crime rates have been relatively stable, these laws have increased the number of offenders sent to prison and the length of time they serve.
If these incarceration rates remain unchanged, Department of Justice data indicate that an estimated one in twenty of today's children will serve time in a prison during his or her lifetime and will be disenfranchised for at least the period of incarceration.33 The total number of disenfranchised will be substantially greater because it will also include felons on probation in the twenty-nine states that disenfranchise those on probation.
Racially Disproportionate Incarceration Rates
The strikingly disproportionate rate of disenfranchisement among African American men reflects their disproportionate rate of incarceration. The rate of imprisonment for black men in 1996 was 8.5 times that of white men: black men were confined in prison at a rate of 3,098 per 100,000 compared to a white rate of 370.34 Even more strikingly, in the past ten years the black men's rate increased ten times the white men's increase.
If current rates of incarceration remain unchanged, 28.5 percent of black men will be confined in prison at least once during their lifetime, a figure six times greater than that for white men. As a result, nearly three in ten adult African American men will be temporarily or permanently deprived of the right to vote. But the total numbers of disenfranchised will be greater because, as noted above, it will include a substantial percentage of those convicted of a felony but not receiving a prison sentence (e.g., sentenced to probation). In states that disenfranchise ex-felons, we estimate that 40 percent of the next generation of black men is likely to lose permanently the right to vote.
We have not developed estimates of the number and racial composition of disenfranchised women. The rates for black women are also likely to be quite disproportionate, though on a smaller scale than black men. This is a result both of increasing rates of criminal justice supervision of women, in general, and higher rates overall for black women, in particular. Although women represent 15 percent of all persons under correctional supervision, their numbers have been growing at faster rates than for men in recent years. Among sentenced prisoners the rate of incarceration for women grew by 182 percent in the period 1985-1995, compared to an increase of 103 percent for men. Since black women are incarcerated at a rate eight times that of white women, the effect of these increases is magnified for them.
The increased rate of black imprisonment is a direct and foreseeable consequence of harsher sentencing policies, particularly for violent crimes, and of the national "war on drugs." Although the black proportion of arrestees for violent crimes has remained relatively stable over the past two decades, blacks nonetheless continue to constitute a disproportionately large percentage of those arrested for violent crimes (43 percent in 1996); their incarceration rate in part reflects the longer sentences imposed for those crimes. But drug control policies that have led to the arrest, prosecution and imprisonment of tens of thousands of African Americans represent the most dramatic change in factors contributing to their disproportionate rate of incarceration. Although drug use and selling cuts across all racial, socio-economic and geographic lines, law enforcement strategies have targeted street-level drug dealers and users from low-income, predominantly minority, urban areas. As a result, the arrest rates per 100,000 for drug offenses are six times higher for blacks than for whites. Although the black proportion of all drug users is generally in the range of 13 to15 percent, blacks constitute 36 percent of arrests for drug possession. Under harsh drug sentencing policies, convictions for drug offenses have led to predictable skyrocketing in the numbers of blacks in prison. In 1985 there were 16,600 blacks in state prisons for drug offenses; by 1995 the number had reached 134,000. Between 1990 and 1996, 82 percent of the increase in the number of black federal inmates was due to drug offenses.
... its time for Prosperity