Also last week, a liberal majority on a Fifth Circuit panel ruled (in Hopkins v. Hosemann) that a Mississippi law that disenfranchises individuals who have been convicted of a felony violates the Eighth Amendment’s bar on cruel and unusual punishments. Here’s the summary from Judge James Dennis’s opinion, which Judge Carolyn Dineen King joined:
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.
One problem with this conclusion, as Judge Edith Jones points out in her dissent, is that it contradicts the Supreme Court’s 1974 ruling in Richardson v. Ramirez. There the Court pointed out that section 2 of the Fourteenth Amendment affirmatively contemplates that states might disenfranchise felons. In rejecting an Equal Protection Clause challenge to a California law that disenfranchised felons, the Court majority stated that “we may rest on the demonstrably sound proposition that § 1 [section 1 of the Fourteenth Amendment], in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” As Judge Jones points out, section 1 of the Fourteenth Amendment of course contains both the Equal Protection Clause and the Due Process Clause—the provision through which the Eighth Amendment has been held to apply against the states. So the reasoning of the Court applies equally to both clauses.
Judge Jones proceeds to explain that, irrespective of Richardson, felon disenfranchisement “is neither cruel, nor unusual, nor a punishment.”
Don’t expect this panel ruling to have a long shelf life.