For Many Ex-Cons, Ban on Voting Can Be for Life

The assignment was one of the biggest of J.C. Towns’ photographic career: Snap the official campaign portrait of eastside Selma’s leading politician, a man vying to become the city’s first black mayor.

For several weeks now, Towns’ picture of the candidate has been plastered on billboards across this fabled Southern community, hallowed ground in the struggle for African American voting rights. But when the candidate asked Towns for his vote--black turnout being the key to toppling the nine-term incumbent--the founder of New Life Photo Ministries had to shake his head.

“I’m a criminal, man, a convict, a stain on society,” said Towns, 50, who does most of his work at church socials and school proms. Nineteen years ago, he explained, he was found guilty of possessing stolen property, an offense that disqualifies him from voting in Alabama despite having served four years in prison and two on parole.

“I’m not a trouble person,” Towns said, “but I ain’t got no rights.”

As the nation heads to the polls this election year, a large and growing segment of the population is being excluded from the practice of democracy: Nearly 4 million felons--some incarcerated, others long since free--are without the right to vote. In most states, including California, that right is automatically restored after a convict completes his sentence or the terms of his parole. But in 12 states, convicts lose their voting rights indefinitely, leaving at least 1.7 million adults disenfranchised for life, according to estimates by the Washington-based Sentencing Project, a liberal think tank that studies the social costs of America’s prison boom.

Black men, disproportionately represented in the criminal justice system to begin with, bear the brunt of these laws: At any given time, one in seven cannot vote. In the states that continue to penalize felons after their sentences have been served, the rate is closer to one in four. In Alabama, the nation’s disenfranchisement leader, roughly one in three black men is stripped of his vote--a penalty that, to many here, echoes the Jim Crow tactics that once kept nearly all African Americans from being counted.

“This is the modern-day version of the poll tax and the literacy test,” said J.L. Chestnut Jr., Selma’s first black lawyer.

Thirty-five years ago--when he was Selma’s only black lawyer--Chestnut served as a legal advisor to the Rev. Martin Luther King Jr. during the historic Selma-to-Montgomery march, a protest that led to the 1965 Voting Rights Act. At the time, just 156 blacks were registered to vote in the Selma area; a year later, there were more than 10,000. For all that progress, one of Chestnut’s own sons--40-year-old Terry, a convicted burglar--is now barred from the polls.

“There have always been mechanisms for diluting, or destroying, the black vote,” said Chestnut, who helped carry King’s injured marchers to safety after state troopers, on “Bloody Sunday,” violently blocked them from crossing the Edmund Pettus Bridge. “After the civil rights movement, that mechanism became the criminal justice system--and here in Alabama, they have used it to the hilt.”

Those who favor disenfranchisement say that the felon has only himself to blame. States deny ex-cons all kinds of privileges--owning a gun, obtaining an occupational license, serving on a jury--based on the rationale that society has the prerogative, even the duty, to restrict the civic participation of any citizen who acts against the common good.

“I don’t care if they’re Hispanic, black, white or whatever--I just take a dim view of anyone who breaks the law,” said Alabama state Rep. Bob McKee, a leading Republican from Montgomery.

The practice dates back centuries to ancient Rome and, later, medieval Europe, where infamous criminals would be sentenced to “civil death,” banished from the communities they victimized. “It can scarcely be deemed unreasonable,” U.S. 2nd Circuit Court of Appeals Judge Henry J. Friendly once ruled, “for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.”

To critics, disenfranchisement is an undemocratic relic, left over from a time when only white landowning men had access to the ballot. The redeeming feature of American political history, as they see it, has been the steady expansion of suffrage: to the poor, women, racial minorities, young adults.

Few go so far as to urge that felons be permitted to cast a ballot behind bars--a privilege granted by only three states, Maine, Massachusetts and Vermont. But many consider permanent punishment to be cruel and self-defeating, a stigma that undermines the offender’s already tenuous place in society. “Politics is all a bunch of baloney,” said John Casby, an ex-con who lives in a blistered shotgun shack not far from the Alabama state Capitol. “But it’s still all right, you know what I mean? Everyone wants to be recognized.”

A retired cashier at the Gunter Air Force Base commissary in Montgomery, Casby lost his voting rights 25 years ago after shooting a woman in the shoulder during a whiskey-sopped fight over money. He spent 21 days in jail, served 10 years’ probation and--using the settlement from an auto accident--eventually handed over $10,000 in restitution.

“It might’ve been different if I’d have killed her,” he said. “But I did my time, and I paid my debt. Now I want to be a citizen again.”

If not for a City Council candidate who came knocking on his door last year, Casby would not have known that Alabama--like most other disenfranchisement states--actually has a procedure for felons to regain their rights. It is not advertised. It is also lengthy and cumbersome. Only a tiny fraction of ex-cons even bothers to apply.

For Casby, the first step was to get an application from the state Board of Pardons and Paroles. “If no one even tells people about these forms, how are they supposed to know where to find them?” asked Jerome Gray, field director of the Alabama Democratic Conference, an African American political action committee. Gray makes his own copies of the application--hundreds at a time--and tries to find ex-cons, such as Casby, who might be willing to wade though the bureaucracy.

“But it’s difficult to make significant headway,” Gray said. “The system’s so archaic.”

Each application has three pages of questions--about the offender’s crime, his sentence and personal background--that need to be filled out in duplicate. Any missing information, the instructions warn, will invalidate the request.

If that fails to discourage an applicant, the DNA test very well might. Added to the pardon rules in 1994, a blood or saliva sample must be submitted to the Alabama Department of Forensic Sciences, for use in its criminal data bank. The test is free. But the agency has only four laboratories in a state of 4 million people. When Casby called the Montgomery lab, he was told that DNA testing is offered just once a month--on one day, for one hour.

Still, Casby went along, hopeful that he would be able to vote in his first presidential election in decades. He mailed off all the material last July. He has yet to get an answer.

“Sometimes it can take as long as a year and a half,” conceded Cynthia Dillard, the Pardon Board’s spokeswoman.

She said the state receives about 200 applications a year, nearly 90% of which are approved. But before that can happen, each request is investigated by a parole officer--who has to dig up court records, notify judges and consult with victims--a maddeningly inefficient process that must be juggled on top of a regular caseload. If even a modest number of Alabama’s estimated 195,000 ex-cons were to seek their voting rights, the entire pardon system likely would grind to a halt.

“Why not put that criminal through a little more grief and make him jump through a hoop or two?” said McKee, who has served in the Alabama House since 1978. “If he’s really serious and wants to get back into society, then I’d like to see him show some initiative.”

For the third consecutive year, the Alabama Legislature is weighing a bill that would automatically restore the vote to felons upon completion of their sentence. The Pardon Board supports it. But with Republicans wary of coddling criminals--or, worse, of turning criminals into voting Democrats--the proposal remains bogged in partisan politics.

Congress is also considering a bill--the Civic Participation and Rehabilitation Act--that would extend voting rights to probationers, parolees and ex-cons in federal elections. As it stands now, each state determines voter eligibility, even for presidential races, allowing a rapist in Illinois--but not a bad-check writer in Mississippi--to help pick the nation’s next leader. (California restored the right to ex-convicts in 1974 with the passage of Proposition 10, which allows felons to vote upon completion of prison or parole.)

Such a crazy quilt of rules may appear intrinsically unfair, reducing voting rights to an accident of geography. But many legal scholars believe Congress has no authority to meddle; the Constitution’s 14th Amendment, which imposes penalties on states that fail to provide equal access to the ballot, specifically exempts cases of disenfranchisement because of “rebellion, or other crime.”

“We do not want people voting who are not trustworthy and loyal to our republic,” Roger Clegg, a former deputy in the Justice Department’s civil rights division in the Bush administration, told the House Judiciary Committee last fall. He added: “Criminals are, in the aggregate, less likely to be trustworthy good citizens.”

Yet how crimes are defined, enforced, prosecuted and sentenced is a matter of intense debate in this country. As the U.S. jail and prison population swells--doubling from 1 million to 2 million in the last decade--so does the racial disparity; blacks are seven times more likely than whites to end up behind bars.

Many conservative academics and criminologists, who tend to see crime as a moral failure, believe those rates merely reflect the sad reality of black America. In the nation’s most dangerous neighborhoods, they note, an underclass of predators and addicts inflicts a disproportionate amount of harm.

Liberals, who are more likely to see crime as a function of racism and poverty, fear that entire communities have been demonized. Whatever the rates of black crime, they say, there is ample evidence that police disproportionately seek out black offenders--through profiling, deployment, “stop-and-frisk” tactics--on grounds that range from pragmatic to malicious.

Here in the South, moreover, laws historically have been tailored in ways that have made blacks more susceptible to arrest. Alabama, in fact, openly tampered with the disenfranchisement clause of its state Constitution in 1901, declaring that “white supremacy” could be established if voting was limited to the “intelligent and virtuous.” Although felons already were barred from the polls, lawmakers expanded the list of disqualifying crimes to include dozens of misdemeanors--lumped under the catchall phrase of “moral turpitude”--that blacks supposedly were predisposed to commit.

The misdemeanor provision stood for 84 years, until the U.S. Supreme Court ruled it was racially biased. “Blacks are about one-fifth of Alabama’s population, but about 60% of its prisoners,” said Chestnut, the Selma lawyer. “Nobody can convince me that one-fifth of this population commits 60% of the felonies. What’s obviously happening here, which is pretty much true everywhere, is that we’re being singled out.”

To the defenders of disenfranchisement, any effort to deflect blame from the criminal only serves to demean those who choose not to break the law. They contend that blacks--who are more likely than whites to live in high-crime areas--actually have the greatest interest in keeping political power out of the hands of their victimizers.

“It could be argued,” said Todd Gaziano, a senior fellow at the conservative Heritage Foundation, “that those communities that currently have the highest level of state disenfranchisement are the most protected by those laws.”

That is not the way they see it on the mostly African American east side of Selma, home to J.C. Towns’ photo lab. Although blacks account for 60% of the city’s 25,000 residents--and hold many high-level posts, from police chief to fire chief to five of the City Council’s nine seats--Selma is still run by the same power broker whose tenure predates the Voting Rights Act: Mayor Joseph T. Smitherman.

During his 36 years in office, Smitherman has modified his racial views, as many a former segregationist has. Despite winning his last election by only 372 votes, he is still widely recognized as a masterful politician, his command of patronage shrewd enough to both defuse black opposition and reassure the white business establishment. Just about everyone here believes Smitherman will be Selma’s last white mayor, whether he chooses to retire or is defeated. But for the African American candidates who are trying to accelerate that process, the troubling question remains: How many potential voters have been silenced by Alabama’s disenfranchisement law?

“It’s hard not to see this as an implicit mockery of African Americans and their right to vote, a right we sacrificed and fought so hard to obtain,” said Yusuf Abdus-Salaam, a city councilman since 1993 who is running for mayor in August.

He has only to glance at his own campaign photo--wry smile, hand artfully resting on chin--to be reminded of one vote already lost.

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States with the highest percentage of disenfranchised voters:

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Percentage Rank State of voters 1. Alabama 7.5% 2. Mississippi 7.4% 3. Florida 5.9% 4. Virginia 5.3% 5. Texas 4.5% 6. Wyoming 4.1% 7. New Mexico 4.0% 8. Delaware 3.7% 9. Washington 3.7% 10. Maryland 3.6% California 1.0% U.S. average 2.0%

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Source: Source: The Sentencing Project, “Losing the Vote,” 1998.

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States with the highest percentage of disen-franchised black voters:

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Percentage Rank State of voters 1. Alabama 31.5% 2. Florida 31.2% 3. Mississippi 28.6% 4. Wyoming 27.7% 5. Iowa 26.5% 6. Virginia 25.0% 7. New Mexico 24.1% 8. Washington 24.0% 9. Texas 20.8% 10. Delaware 20.0% California 8.7% U.S. average 13.1%

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Source: Source: The Sentencing Project, “Losing the Vote,” 1998.