The NewStandard ceased publishing on April 27, 2007.

Court Rejects Felon 'Poll Tax'

by Michelle Chen

Mar. 31, 2006 – It’s been about three years since Beverly DuBois broke the law, and she’s still paying for it – literally, in monthly installments. The fines she owes the Washington state government have piled up to nearly $2,000 – the last stubborn vestige of her felony conviction for growing marijuana in a local barn in 2002. And until recently, that debt was also the last thing standing between her and the ballot box.

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Washington, like about a dozen other states, does not permit people with felony convictions like DuBois to vote until they have completed their entire sentences, including paying all financial penalties.

But on Tuesday, voting rights activists made a small dent in a system of state laws that disenfranchise citizens as a consequence of felony conviction. A state court struck down a requirement that felons pay all financial penalties before regaining their voting rights.

In a case brought by the Washington ACLU on behalf of DuBois and two other disenfranchised citizens, the court ruled that once a prison term is served and all parole, probation and community-service obligations fulfilled, the final so-called "debt to society" – cumulative fines heaped on often-impoverished former prisoners – should not block access to the polls.

Living on disability checks for a nerve condition, the 49-year-old DuBois is saddled with payments to cover court costs and to support a local "drug enforcement" fund. Her debt grows at a 12 percent interest rate, far outstripping her $10 monthly payments.

The plaintiffs argued that the final so-called "debt to society" -- fines heaped on often-impoverished former prisoners –- should not block access to the polls.

"In my lifetime, I could never get it paid off," she told said, "which would mean I couldn’t vote for the rest of my life. And I didn’t think that that was right. I’ve done my time; I’ve done the probation, you know; I’ve done everything they’ve asked for me to do."

The King County Superior Court ruled that while federal and state constitutions do not explicitly prohibit the restriction of voting rights for felons, both guarantee equality before the law. Without challenging the legitimacy of felon disenfranchisement as a whole, the court’s ruling in the case found that it is discriminatory to condition the restoration of voting rights based on the ability to pay state-imposed restitution. Voting laws in most states disenfranchise people convicted of felonies to some extent.

Aaron Caplan, an ACLU–Washington attorney who helped litigate the case, told The NewStandard that Washington had "set up a two-tier system where people who were rich and could write a check – they would get to vote, and everybody else couldn’t." Caplan added, "Wealth is just not a proper basis for deciding voting rights."

Caplan said that fining felons has become an increasingly popular way to make them foot the bill for their own punishment. In many states, such penalties cover expenses ranging from private probation services to state-run crime-victim’s funds, and could bury a prisoner struggling with poverty in hundreds of dollars in debt.

An estimated 5.3 million Americans – about 2 million of them black – have lost the right to vote due to felony convictions. Many are no longer even in prison.

Noting that many felony convictions are for nonviolent drug-related offenses, Caplan suggested an economic, rather than moral calculus driving restitution policies. From the perspective of a political official, he said, "You have your choice: you could pay for it out of tax dollars, or you could say ‘no we’re going to use this as a revenue source.’"

Responding to the ACLU’s charge that the state’s policy is tantamount to a modern-day "poll tax," attorneys for the state argued in court that the debts levied on felons are justifiable because they are "linked to the individual choices and conscious behavior of the particular person." The state announced Wednesday that it would appeal the ruling.

The Legacy of Disenfranchisement

Though there is little comprehensive data on the magnitude of felon disenfranchisement, the Washington State government data compiled by the ACLU indicates that of roughly 250,000 felony convictions released from state supervision between 1988 and 2005, fewer than 70,000 received the official court discharge that restores an individual’s voting rights. Since people convicted of felonies tend to be indigent at the time of sentencing, the ACLU infered that the burden of financial penalties factors heavily into this disparity.

On a national level, according to University of Minnesota sociologist Christopher Uggen, as of 2004, an estimated 5.3 million Americans – about 2 million of them black – have lost the right to vote due to felony convictions. Many of them are released from prison under some form of surveillance, like parole. A 2000 data analysis by the Right to Vote Campaign, a project of the civil-rights legal group Brennan Center for Justice and other groups, found that blacks made up roughly 14 percent of Washington’s disenfranchised population, even though they make up only 3 percent of the state’s general population.

Advocates for the disenfranchised say that regardless of how voting restrictions change on the books, the actual impact of reform hinges on local enforcement.

Marc Mauer, executive director of the Sentencing Project, a group that pushes for alternatives to conventional punishment models, said the impact of disenfranchisement reverberates long after an individual leaves prison. "It’s not just people with felony convictions that are affected," he said, "but people living in communities with high rates of incarceration."

"There are fewer votes in that community," Mauer added, "so their communities have less representation."

Some opponents of felon disenfranchisement support the restoration of voting rights not only for felons living in their communities, but also for those still incarcerated.

Currently, nearly all states deny the vote to people currently incarcerated, and most disenfranchise parolees or probationers as well. A few states, including Florida and Mississippi, continue to bar ex-felons from voting after they have completed their sentences, sometimes permanently. Vermont and Maine are alone in never revoking felon voting rights, even during incarceration.

Though the Supreme Court has upheld the authority of states to enact felon disenfranchisement statutes, civil-rights groups have waged court and political battles to dismantle those laws.

Going beyond the relatively narrow scope of the Washington case, the NAACP Legal Defense and Education Fund has filed suits challenging felon disenfranchisement laws in Washington State and New York, citing the discriminatory impact of voting bans on minority communities.

Public pressure has also yielded some reforms. Last year, policymakers in Nebraska and Iowa curtailed disenfranchisement policies in those states to automatically restore voting rights once an individual completes a felony sentence.

But in other states, disenfranchisement remains entrenched in the criminal justice system. In recent years, voters in Massachusetts and Utah have passed ballot initiatives to prohibit incarcerated felons from voting. In 2005, litigation by the Brennan Center for Justice challenging Florida’s disenfranchisement policy – which has stripped the voting rights of hundreds of thousands of residents – was rejected by an appeals court, and the Supreme Court refused to review the case.

Advocates for the disenfranchised say that regardless of how voting restrictions change on the books, the actual impact of reform hinges on local enforcement. Civil rights groups argue that even when people are technically allowed to petition to regain voting eligibility, rigid review processes by electoral authorities – along with a general lack of awareness about eligibility standards among both officials and disenfranchised people – impede the full restoration of voting rights.

Caplan said that among ex-felons seeking legal assistance from the ACLU-Washington, even after all debts are paid, procedural hurdles remain. "It’s really been kind of a bureaucratic nightmare for a lot of those people to get the necessary paperwork to convince the county auditors that they are eligible to vote," he said.

Sasha Abramsky, a senior fellow with the liberal think tank Demos, has researched felon disenfranchisement in Washington. He told TNS that institutional barriers to the polls could rival legal ones. "Even with this court ruling," he said, "there are going to be an awful lot of people in Washington who for years, if not decades, have been told that they couldn’t vote – who aren’t overnight going to suddenly realize they can."

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The NewStandard ceased publishing on April 27, 2007.


This News Article originally appeared in the March 31, 2006 edition of The NewStandard.
Michelle Chen is a staff journalist.

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