En banc Fifth Circuit rejects claim Mississippi’s lifetime felon disenfranchisement violates Eighth Amendment

July 18, 2024

As noted in this prior post, last year a split Fifth Circuit panel ruled in Hopkins v. Hosemann,, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi’s disenfranchisement for life of persons with certain felony convictions “is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.” In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and that very predictable outcomes because a reality today with an opinion in Hopkins v. Watson, No. 19-60662 (5th Cir. July 17, 2024) (available here). Here are excerpts from the start of the majority opinion:

This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses,1 fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment’s Due Process Clause.2 We reject that result because the United States Constitution cannot properly be so interpreted. The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241….

Laws like Mississippi’s Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671.

In other words: go and convince the State legislatures. Do the hard work of persuading your fellow citizens that the law should change. The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.

The dissent begins this way:

The right to vote is the essence of a democratic society and “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.” Disenfranchisement extends to free people who have completed all terms of their sentences. The Plaintiffs, representing a class of persons who have been convicted of Section 241’s crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the “invidious” discrimination that originated Section 241. Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment. Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states.

Prior related posts: