Hopkins, Felon Voting Rights, and Felon Disarmament

On July 18, the en banc Fifth Circuit issued a decision upholding Mississippi’s lifetime felon disenfranchisement provision by a 13-6 vote in Hopkins v. Watson.  The court’s treatment of felon voting- rights denial provides an interesting perspective through which to view arguments over lifetime felon disarmament under federal law—an issue the Court seems likely to confront in future cases.

In Hopkins, an earlier 2-1 panel decision had struck the Mississippi provision—which was adopted at the state’s 1890 constitutional convention that had the goal of “ensur[ing] the political supremacy of the white race”—as cruel and unusual punishment under the Eighth Amendment.[1]  The relevant state constitutional provision provides that only an individual who is 18 years or older, meets residency requirements, and “has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy” is eligible to vote in Mississippi.  The practical effect is that someone with a disqualifying felony conviction is prevented from voting for life, and that disability can be removed only by a two-thirds vote of both houses of the state legislature. 

The panel majority found that the disenfranchisement provision constituted “punishment,” relying heavily on the Mississippi Readmission Act.  That legislation set terms for the state’s post-Civil War readmission to the Union and allowed the state to disenfranchise citizens only as punishment for common-law felony offenses.  The panel next determined that lifetime disenfranchisement was “cruel and unusual” based on “society’s evolving standards of decency.”  Specifically, the panel noted that “thirty-five states and the District of Columbia do not permanently disenfranchise felons” (which it called a “national consensus”) and that lifetime disenfranchisement “[i]s an especially cruel penalty as applied to those whom the justice system has already deemed to have completed all terms of their sentences” that does not further the objectives of criminal law.  Judge Jones dissented, arguing that the majority’s conclusion was foreclosed by Supreme Court precedent and that the punishment of lifetime disenfranchisement is not cruel and unusual (she argued, for example, that it is “incoherent” to believe that “[a] state can execute murderers, but it may not keep them from voting if they are released from prison”).

A majority of the en banc Fifth Circuit voted to reverse.  The majority articulated three main reasons for its decision.  First, the opinion noted that Section 2 of the 14^th Amendment states that the right to vote may not be denied “except for participation in rebellion[] or other crime.”  The majority concluded that “the Cruel and Unusual Punishments Clause should not be understood to prohibit what ‘the explicit language of the Constitution affirmatively acknowledges’ elsewhere as legitimate.”  Second, the majority emphasized that the panel had improperly minimized the Supreme Court’s 1974 decision in Richardson v. Ramirez upholding California’s disenfranchisement law—which it characterized as setting forth broader lessons beyond equal protection doctrine—and “pre- and post-Richardson precedents that buttressed or follow” that decision’s conclusion that lifetime felon disenfranchisement does not violate the Constitution.  In the process, the opinion criticized the panel majority for failing to sufficiently focus on original understanding and historical evidence (citing Rahimi in the process) and instead relying too heavily on standards of decency that developed more recently in the nation’s history. 

Third, the majority concluded that the law did not violate substantive Eighth Amendment doctrine.  The judges found that disenfranchisement is not “punishment” within the meaning of the Eighth Amendment, in part because it does not serve the traditional criminal law aims of deterrence or retribution.  And the opinion determined that, even if the law was considered “punishment,” it would pass constitutional muster because there is no state consensus against such punishment and deeming disenfranchisement unconstitutional would call into question the propriety of a whole host of other possible consequences of a felony conviction including (in some cases) lifetime imprisonment.  Six judges—all from the liberal wing of the court—dissented and would have affirmed the panel decision.

Firearms issues have consistently lurked in the background of the Hopkins case because another consequence of a felony conviction that implicates a protected constitutional right is that felons lose their right to possess firearms for life under federal law (and, in some form, under the law of most states).  At oral argument, Judge James Ho said that, “[i]f it’s cruel and unusual to deprive felons of one right, [that] could apply to other rights” like the Second Amendment.  And he questioned Mississippi’s attorney about whether the panel decision would necessarily suggest that felon disarmament also violates the Eighth Amendment.  Judge Ho, however, joined the en banc majority.  The majority opinion noted that “other onerous consequences of committing felony offenses [including] . . . [the right to] possess firearms” might also be unconstitutional under the panel’s reasoning—an “anomaly” it did not accept.

The outcome in Hopkins leads to two main questions.  First, is it logically consistent to believe that lifetime felon disenfranchisement in Mississippi is constitutional while also believing that some subset of nonviolent felons must, as a matter of federal constitutional law, be allowed to recover their gun rights?  And, second, is there any basis for treating the right to keep and carry firearms as more fundamental than the right to vote?

To the first question, Mississippi’s law does not cover all felony convictions or even, perhaps, most felony convictions.  Rather, the state disenfranchises only those who have been convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”[2]  Interestingly, this list is probably both under- and over-inclusive when compared to the approach suggested in major Second Amendment cases where some judges have held or argued that only violent, dangerous, and/or non-rehabilitated felons can be barred from possessing guns.  While a detailed analysis of the Mississippi language is beyond the scope of this post, Bryan Range’s conviction for misstating his income on an application for food stamps appears to be a conviction for “obtaining money or goods under false pretense,” if those words are construed literally.  So too with Rickey Kanter’s conviction for mail fraud, where the underlying facts seemed to indicate that Kanter had misrepresented material facts about his company’s therapeutic shoe inserts for financial gain.  By contrast, drug offenses—where judges have been much more reticent to find disarmament inconsistent with the Second Amendment—don’t appear anywhere on Mississippi’s list.  

In sum, then, I’m not sure that approving Mississippi’s disenfranchisement language is consistent with holding that those convicted of one of the listed felonies (or a similar offense) must be able to recover their gun rights under the Second Amendment.  And the majority indeed gestures in that direction, writing that a decision striking down the disenfranchisement provision would create an anomaly compared to other consequences of a felony conviction, including those involving guns.  The implication, I think, is that because those other consequences are valid, disenfranchisement is as well.  In any event, it’s certainly worth keeping Hopkins in mind if the Fifth Circuit is presented in the future with a challenge to felon disarmament by a non-violent felon whose underlying conviction falls within the scope of Mississippi’s disenfranchisement provision.

Second, is there any basis for treating the right to keep and carry firearms as more fundamental than the right to vote?  One response to my analysis above might be that it’s actually consistent to hold that a felon can be disenfranchised for life while also holding that the same felon must be allowed to recover his or her gun rights at some point after a period of law-abiding conduct.  After all, keeping and carrying a gun can be a matter of life and death, whereas voting—while a fundamental right in any democratic society—simply doesn’t implicate such immediate consequences with regard to physical safety.  But that strikes me as an improper narrowing of the right to vote.  The Supreme Court has observed that the right to vote is “fundamental,” “preservative of all rights,” and that “no right is more precious in a free country.”  The Court has emphasized that the Second Amendment is not a “second-class right,” but it has yet to use such high-minded language in the context of the right to keep and bear arms—appropriately so, in my view.  That’s because the right to vote (unlike other fundamental rights) is a condition precedent to preserving rights in general.  

Here, it may be worth thinking back to why Mississippi enacted its felon disenfranchisement provision in 1890.  It was, by all accounts, a racially motivated provision adopted at a racist constitutional convention, and the crimes listed “were those the[ delegates] believed, based on prejudices, Black people were more likely to commit.”  As a result of this provision and other racially motivated laws adopted by the convention—such as poll taxes and literacy tests—Black citizens remained almost entirely excluded from the ballot box in Mississippi for decades.  Disenfranchisement was thus a necessary first step to deny other rights, including gun rights and rights to equal participation in all manner of public accommodations.