Mandatory minimum sentencing has contributed to the acute spike in the prison population in recent decades. Credit: Bigstock

By Bryant Harris
WASHINGTON, Feb 12 2014 (IPS)

U.S. Attorney General Eric Holder and several key Republican and Democrat senators agree on the need for criminal justice reform, and some are now even seeking to restore voting rights to former felons.

“There is no rational reason to take away someone’s voting rights for life just because they committed a crime, especially after they completed their sentencing,” Holder said Tuesday at a symposium here. “There’s evidence to suggest that former prisoners whose voting rights are restored are significantly less likely to return to the criminal justice system.”“In my state, one in three young black men are unable to vote because of a felony conviction – and they never get it back.” -- Kentucky Senator Rand Paul

The attorney general referenced statistics indicating that a third of former criminals who regained their right to vote did not commit repeat offences. Holder also traced the existence of laws barring felons from voting back to the period following the U.S. Civil War, when southern states aggressively sought to keep African Americans from voting.

“Many southern states enacted disenfranchisement schemes to specifically target African Americans,” Holder said. “In 1890, 90 percent of the prison population was black and those swept up in the system could not vote.”

Holder and others say the effects of these policies persist today, as the U.S. system continues to disproportionately affect African Americans.

“In the criminal justice system, minorities, particularly African Americans, are very much overrepresented,” Marc Mauer, the executive director of the Sentencing Project, a Washington-based criminal justice advocacy group, told IPS. “So incarceration translates to high rates of disenfranchisement.”

Mauer argues that the implication goes well beyond those in prison. Disenfranchisement, he says, dilutes the electoral power of minority communities, who remain disproportionately represented in the criminal justice system.

Also on Tuesday, Senator Rand Paul, a Republican, agreed with Holder’s assessments on criminal disenfranchisement. He said he is seeking to restore the right to vote for former felons in his home state of Kentucky.

“In my state, one in three young black men are unable to vote because of a felony conviction – and they never get it back,” Paul said. “I’m also in favour of giving back people the right to vote in my state.”

In 1974, a case before the U.S. Supreme Court challenged the constitutionality of disenfranchising former felons. But while many legal scholars disagreed with the ruling, the justices upheld the right of states to enact criminal disenfranchisement laws.

“There have been a number of state-level challenges in recent years to various aspects of the law,” the Sentencing Project’s Mauer said. “But at the moment, most of the reform will have to take place on a state-by-state basis.”

For-profit probation

While many highlight the importance of restoring voting rights to former felons, the main thrust of a fast-growing bipartisan push for criminal justice reform is geared at reducing the overcrowded U.S. federal prison population, which has undergone an 800-percent increase since 1980, exacting a huge toll on taxpayers.

On Tuesday, Republican Senators Paul and Mike Lee, alongside Democrat Senator Sheldon Whitehouse, voiced their support for the Smarter Sentencing Act of 2013. The bill, which recently passed the Senate Judiciary Committee and is currently awaiting a vote, would lower “mandatory minimum” sentences for drug offences.

Mandatory minimum sentencing stipulates an obligatory period of jail time for which an offender must serve, but the bill would give judges more flexibility when sentencing drug offenders, who make up the vast majority of federal cases. Current mandatory minimums stand at five, 10 and 20 years for first, second and third offences, while the bill would reduce these to two, five and 10 years, respectively.

As mandatory minimums have contributed to the acute spike in the prison population in recent decades, the prison system has been forced to try to mitigate the mounting costs. In part, the situation has led to the growth of the for-profit prison industry, which has been criticised for externalising the cost onto offenders themselves.

Last week, Human Rights Watch, a watchdog group here, released a report entitled Profiting from Probation, detailing how for-profit companies have put detainees on probation back into jail for their inability to pay their probation fines.

In one instance in the report, Sentinel Offender Services, a private company hired by the federal government to administer probations, charged a Georgia man, Thomas Barrett, 360 dollars a month in monitoring fees on top of his 200-dollar fine for stealing a two-dollar can of beer. As Barrett was unemployed, he was unable to pay the fees that Sentinel Offender Services imposed, prompting the company to revoke his probation – and landing him in jail.

In 1983, the U.S. Supreme Court ruled that courts could not revoke an offender’s probation for failure to pay fines, unless the failure was wilful. Nonetheless, the Human Rights Watch report notes that probation companies and some courts simply assume that any outstanding payment was wilfully ignored.

Senator Paul, a fiscal conservative, referenced the Barrett case at Tuesday’s symposium and condemned for-profit probation monitoring.

“The prison is not the free market, where you have to have everything done privately,” Paul told IPS. “If you can do some stuff to save money, I’m for that, but you have to recognise a lot of people that are arrested are very poor.”

Paul indicated that while for-profit probation monitoring occurs largely at the state level, he is open to addressing the issue in the federal prison system, as well.

Because many people released on probation are also unemployed as a result of non-violent drug-related felonies, critics worry that for-profit probation can put people back into the prison system.

Paul described how his neighbour’s brother was unable to find a job where he could utilise his business degree due to a conviction in college for selling marijuana. Instead, today he works as a painter.

While the senator praised states that have opted to expunge the records of released felons, he instead favours demoting certain non-violent drug-related felonies to misdemeanours.

Occupy Wall Street joined the NAACP as thousands marched in midtown Manhattan on Dec. 10, 2011 to defend voting rights. Credit: Michael Fleshman/cc by 2.0

By Cydney Hargis
WASHINGTON, Jul 4 2013 (IPS)

Advocacy groups here are reacting with frustration as several southern U.S. states have moved to enact stricter voting requirements in the wake of a recent Supreme Court decision that rolled back key legislation that had safeguarded minority voters for decades.

Following last week’s five-to-four Supreme Court decision overturning a key part of the Voting Rights Act, nine southern states with a history of discriminatory voting requirements are now able to change their election laws without approval from the federal government.“Basically the voter [photo] ID is a solution looking for a problem." -- Kathy Culliton-Gonzalez of the Advancement Project

Chief Justice John Roberts wrote the majority opinion, stating: “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

Yet just 48 hours after the decision, Texas, Mississippi, Alabama and South Carolina announced plans to push through together voting restrictions that critics are warning could disenfranchise minority voters.

“Limiting the voices that can be heard is repugnant to what the country stands for,” Andrew Blotky, director of legal progress the Center for American Progress, a liberal think tank, told IPS. “We have always expanded the ability of people able to participate fully in our society, not restrict it.”

Just two hours after the Supreme Court decision came out, Texas announced that its voter identification law, requiring the presentation of a government-issued photo ID, would go into immediate effect.

Texas Governor Rick Perry also signed into law a new congressional voting map that is almost identical to the map that was ruled discriminatory last year, according to Kathy Culliton-Gonzalez, director of voter protection at the Advancement Project, an advocacy group.

“It’s not really that [southern states] weren’t treated equally; it’s about the fact that they earned this reputation to not be trusted,” Culliton-Gonzalez told IPS. “There is a reason that Texas, Mississippi, Florida and North Carolina were all covered in Section 4 [of the Voting Rights Act].”

Texas does offer free identification certificates for residents who lack other forms of photo ID, but the documents required to obtain these certificates are costly. According to Culliton-Gonzalez, some residents can be forced to drive up to 400 kilometres to apply for the free certificates, which is impractical for many voters, particularly those who are poor.

In North Carolina, meanwhile, another state impacted by the Supreme Court decision, lawmakers are now attempting to eliminate early voting, same-day registration and Sunday voting hours, and are likewise planning to implement new photo identification requirements.

According to Think Progress, an advocacy group associated with the Center for American Progress, about 613,000 North Carolinians currently lack the required photo ID, and nearly one third of these are African American.

Florida, too, is looking to cut the option to vote early, which has been seen as a key tool by which to allow more citizens to vote. Analysts suggest that eliminating early voting will have particularly serious consequences for African-American voters, half of whom cast their ballots during the early voting period in 2008, and made up 22 percent of the early vote in 2012.

“It’s terrible,” Blotky told IPS. “Its not coincidence that these states have already tried to take advantage of the opportunity to enact laws that will restrict the votes of some people who really rely on the ability to have access to polls before the election because they have work or families to take care of.”

Looking for a problem

In Alabama, residents have already been required to show identification at the polls in the form of utility bills, Society Security cards, or a copy of birth certificates. Now, conservatives in the state legislature reportedly hope to have a new photo identification requirement in place by the June 2014 “primary” elections, during which voters will choose candidates for subsequent national races.

In next-door Mississippi, 62 percent of voters have said they approve of requiring photo ID at the polls, and are in favour of a new requirement that is now also aimed to be in place by June of next year.

“Mississippi citizens have earned the right to determine our voting processes,” Secretary of State in Mississippi Delbert Hosemann recently told the press, adding that ne one should have any barriers when casting their ballot. “Our relationship and trust in each other have matured. This chapter is closed.”

Supporters of a requirement for government-issued photo ID at polls say the move will combat a purported voter fraud problem. Opponents, however, claim this issue has been significantly over-exaggerated.

“In case after case last year, we found those allegations of voter fraud were just allegations – that’s all there was to it,” said Culliton-Gonzalez. “Basically the voter [photo] ID is a solution looking for a problem – it doesn’t solve anything at all.”

Photo IDs are intended to cut down solely on in-person fraud. Yet according to a study published in August 2012, there have been just 10 documented cases of in-person voter fraud throughout the United States since 2000. Three of those cases were in a single state, Texas, and there was one conviction.

The NAACP Legal Defense Fund, a legal assistance organisation that fights racial injustice, has stepped up its surveillance of the changes that are being implemented to voting requirements in the southern states that had been covered in Section 4 of the Voting Rights Act. The organisation says it intends to use these findings to show that the previous structure of the legislation was effective.

Importantly, the Supreme Court decision simply stated that the law was functioning off of an outdated formula for figuring out which states required federal oversight. The justices have struck down Section 4 only insofar as they have mandated that the U.S. Congress revisit the issue and come up with a new formula.

In that process, groups such as the NAACP see an opportunity to ensure that this legal cover is re-strengthened and continues as long as it’s required.

“There has been progress nationally and at the state levels, but that does not mean we’ve reached a place where those states are free from racial discrimination,” Leah Aden, assistant council with the NAACP Legal Defense Fund, told IPS. “The goal is to not only get people to register and turn out, but to make sure their votes are meaningfully counted.”

The Supreme Court of the United States. Credit: Mark Fischer/CC by 2.0

By Matthew Charles Cardinale
ATLANTA, Georgia, Jun 25 2013 (IPS)

The U.S. Supreme Court struck down a key provision, Section 4, of the Voting Rights Act (VRA) of 1965 in a five to four ruling today, halting enforcement of Section 5 of the act.

One of the key achievements of the Civil Rights Movement, the act was intended to address historical, entrenched racial discrimination in voting policies and practises.

Even though black people in the United States have ostensibly possessed the right to vote since 1870, under the 14th and 15th amendments to the U.S. Constitution, multiple federal civil rights acts were enacted in 1957, 1960, 1964 and 1965 to address discriminatory practises at state and local levels, including in elections.

Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito ruled to strike down the Section 4(b) of the 1965 act. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the act. It requires that the U.S. Department of Justice pre-clear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 states in the United States, mainly in the South. Section 4 defines what areas Section 5 covers."Hubris is a fit word for today's demolition of the VRA."
-- Justice Ruth Bader Ginsburg

“Equal sovereignty”

The case, Shelby County, Alabama v. Attorney General Robert Holder, argued that, on its face, the 2006 Congressional reauthorisation of sections of the act was unconstitutional because it was based on historical data of racial discrimination in election practises that are no longer relevant.

A majority of the court agreed with Shelby County, arguing there is a “fundamental principle of equal sovereignty” between states that requires the federal government to treat states equally.

Section 5, the court wrote, “requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties)”.

The court also ruled the criteria defined in Section 4 – a history of discriminatory practises, along with a low level of voter turnout – were antiquated and no longer justified by current conditions, because of the very success of the act.

Voter turnout and registration rates in covered jurisdictions “now approach parity”, the court wrote, and minorities hold elected office “at unprecedented levels”. It added that discriminatory practises like literacy tests have disappeared and that blatant discrimination is rare.

Justice Ruth Bader Ginsburg blasted the majority opinion in her dissent, writing, “Hubris is a fit word for today’s demolition of the VRA.”

“In the Court’s view, the very success of [Section] 5 of the Voting Rights Act demands its dormancy… Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation,'” she wrote.

Ginsburg noted an current, ongoing problem of a second generation of tactics designed to dilute black voting strength, including redistricting practises and a move to change some elections to at-large voting.

Ginsburg wrote that the Congressional record showed that covered jurisdictions were more likely to be the subject of prevailing discrimination complaints and that there was a procedure for covered jurisdictions to apply to be bailed out of Section 5, and for non-covered jurisdictions to be bailed in, if necessary.

Further, she argued that because Shelby County, the actual plaintiff in the case, clearly qualified for Section 5 coverage, that the court had overreached. “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking.”

“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” she wrote.

Fury from civil rights advocates

Voting rights and civil rights advocates are infuriated at the ruling and are scrambling to take action.

Some activists are urging Congress to enact a new Section 4 based on modern-day criteria to identify which states and other jurisdictions should require preclearance for any election-related changes

The National Association for the Advancement of Colored People (NAACP) already has a petition on its website calling on Congress to act.

Justin Levitt, associate professor of law at Loyola Law School, Los Angeles, told IPS that such a move may be more complicated and politically challenging than it sounds.

“The court… certainly left the door open. If Congress chooses to return to ‘where’ question [where preclearance should be required], it would have to articulate a set of jurisdictions and the reason for including those and not others responsive to facts on the ground,” Levitt said. “That’s really hard to do.”

“It’s like asking Congress to try to figure out and come up with…current measures for places that are most sick even though they’re taking medicine. Now we’re taking the medicine away and now Congress needs to show it needs the medicine,” he said.

Possible new criteria that have been discussed so far include a history of other voting rights litigation under other provisions of the VRA, the degree to which an electorate is racially polarised or levels of prejudice, he said.

As for the court’s disregard for Congress’s renewal of the act in 2006, “there is not a tremendous amount of consistency in the amount of deference other branches of government get,” Levitt said.

Other activists are looking for a more radical and fundamental change. Rashad Robinson, executive director of ColorofChange.org, said his organisation is pushing for a constitutional amendment guaranteeing the right to vote.

“The right to vote is not enshrined in our Constitution. There’s a host of different requirements and laws, everything from registration to ballot access, in different states,” Robinson said.

“We can continue to be on the defensive, or we can sort of advance a new framework for how elections should be run in this country, and that’s what we’re doing here,” Robinson told IPS.

“We’ve got to be more aspirational,” he said. “We’ve got to think bigger.”

The U.S. Supreme Court will hear oral arguments Wednesday in a challenge to the constitutionality of key sections of the historic Voting Rights Act (VRA) of 1965.

Numerous organisations are rallying in support of the VRA. Activists across the nation, including Dr. Charles Steele, CEO of the Southern Christian Leadership Conference (SCLC), are traveling to Washington, DC to protest outside of the court.

“Everything has changed, but nothing has changed,” Dr. Steele told IPS.We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station.

“Everything has really gone backwards in terms of our successes. If we let this go, if we sit idly by, then we’re destined for failure. We’re not going to rest on our laurels because we have a black president. We’re going to take to the streets and that’s where we’re heading,” he said.

“We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station – you got to get back on the bus,” he said.

Even though black people in the U.S. have ostensibly had the right to vote since 1870 under the 14th and 15th amendments to the constitution, several federal Voting Rights Acts were enacted in 1957, 1960, 1964, and 1965 to address discriminatory election practices at the state and local levels.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the Act. It requires that the justice department preclear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 U.S. states, mainly in the U.S. south.

The case, known as Shelby County, Alabama v. Attorney General Robert Holder, argues that, on its face, the 2006 Congressional reauthorisation of sections of the Act was unconstitutional because it was based on historical data of racial discrimination in election practices that are no longer relevant.

“That’s actually not true,” Lisa Bornstein, senior counsel and senior policy analyst for the Leadership Conference on Civil and Human Rights, told IPS. “We have loads of examples, continuing to this day, there are voting discriminatory practices happening in covered jurisdictions.”

The justice department recently blocked voter ID laws in South Carolina and Texas that, if not blocked, would have been in place during the November 2012 elections.

“Also, there are redistricting efforts. In Texas there was an attempt to redistrict so that Hispanics, who are now 65 percent of the growth, to limit that voting power by the way of redistricting,” Bornstein said.

“Then there’s examples like changing the date of an election, changing the place of an election.
Some of them are done to have a discriminatory impact,” she said.

Examples of modern-day discrimination in covered jurisdictions are in the thousands.

In 2008, the City of Calera, Alabama redrew one of its City Council districts to reduce the black voting population from 69 percent to 29 percent, leading to an incumbent black councilmember, Ernest Montgomery, losing his seat.

The justice department intervened, requiring the city to redraw the lines and hold a new election, in which he was reelected. That action led to the current Supreme Court challenge by Shelby County, in which Calera is located.

In another example, in 2001, the justice department objected after the all-white town government in Kilmichael, Mississippi tried to cancel an election shortly after black citizens had become a majority. When the citizens of Kilmichael finally voted, they elected the town’s first black mayor and three black aldermen.

The Act also provides that covered jurisdictions can petition to “bail out” of Section 5. Beginning in 1982, jurisdictions could bail out if they could prove they had complied with a list of nondiscrimination requirements for 10 years.

In addition, the Act provides that the new jurisdictions can be “bailed in”.

Congress reauthorised the VRA of 1965 in 1970, 1975, 1982, and in 2006.

In 1975, Congress expanded Section 5’s reach to cover jurisdictions that had engaged in widespread discrimination against “language minority” groups.

In 2006, Congress held extensive hearings on the VRA and the continued need for Section 5 today, considering some 15,000 pages of legislative record.

The 2006 reauthorisation was approved 98 to zero in the Senate, and 390 to 33 in the House of Representatives.

The Supreme Court has upheld Section 5 of the VRA several times, including in 1966, in a landmark case, South Carolina v. Katzenbach; and again in 1973, 1980, and 1999.

More recently, in 2009, in Northwest Austin Municipal Utility District Number One v. Mukasey, the Supreme Court issued a ruling expanding the types of jurisdictions that could bail out of Section 5 coverage. The Municipal Utility District had not been previously been considered an independent enough district to be eligible to bail out.

Since that decision, 127 additional jurisdictions have bailed out. “It’s not a particularly onerous process,” Bornstein said.

“That’s part of the beauty of this law and why we believe it’s constitutional. This law allows for flexibility in case there’s overinclusiveness or underinclusiveness, to make sure the law as a whole functions properly,” she said.

In the Northwest Austin ruling, the court acknowledged the progress made in covered jurisdictions since 1965, attributing this progress to the VRA itself, noting that the progress may be “insufficient and that conditions [may] continue to warrant preclearance under the Act.”

The court added that “the Act imposes current burdens and must be justified by cur­rent needs.” This language has led some legal scholars and pundits to predict that Section 5 of the VRA might be in danger altogether, especially given the fact that the Supreme Court chose to hear the current case.

But advocates do not believe the section is in danger because they believe the current burdens are met by current needs.

“It would be a big step for the Court to determine that [the reauthorisation was unconstitutional]. Congress has the authority to make this determination. The court cannot second guess if what Congress has done was reasonable,” she said.

As previously reported by IPS, there were numerous voter suppression laws and tactics in place during the November 2012 elections, representing a new generation of Jim Crow laws.

Some of these activities occurred in jurisdictions not covered by Section 5 and did not require preclearance by the justice department. However, Section 2 of the VRA of 1965 allows the justice department to bring case-by-case litigation in non-covered jurisdictions, something Section 5 attempts to avoid in historically discriminatory jurisdictions.