I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Observation about Mississippi’s law disenfranchising felons

I’ve spent the day (into the night) in court and will be posting lightly the next day or two.

In the meantime, I just want to make an observation about how tenuous the Mississippi law about disenfranchising felonies seems to me.

There’s a limited constitutional list of disenfranchising felonies in Section 241 of the 1890 constitution.  In 1950, burglary was dropped (I’m curious how that came about), and in 1968, murder and rape were added, leaving a list of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy…”  No Mississippi statute, constitutional provision, or even decision of the Mississippi Supreme Court suggests a different list.  Miss. Code § 23-15-11 states that everyone resident over 21 is qualified  “who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890…”  But yet, the applications for voter registration have a different, longer list that includes felony bad check, receiving stolen property, extortion, felony shoplifting, and unlawful taking possession of a motor vehicle (all crimes that to one degree or another existed in 1968 and could have been added the last time this constitutional provision was amended).

So without constitutional or statutory authority, or, for that matter, case law support, how is it that all these extra-constitutional crimes have been deemed disenfranchising?

In Cotton v. Fordice, the Fifth Circuit (via Judge Edith Jones), in a case  where the plaintiff was a pro se prisoner, held that the state constitutional provision disenfranchising felons included grand larceny by implication because the constitution disenfranchised for theft.  In doing so, the Court noted that the disenfranchising provision from the 1890 constitution would fail for racial animus (due to the U.S. Supreme Court holding striking down Alabama’s provision in Hunter v. Underwood*)  unless it was washed clean of same by being ratified by later votes untainted by the racial issues of the Jim Crow era 1890 constitution.  And the Fifth Circuit that such later votes occurred.

When?  Why, in 1950 (when burglary was removed from the list of disenfranchising crimes) and 1968 (when murder and rape were added to the list).  And what was special about the 1968 addition?  “[I]n 1968, the state broadened the provision by adding ‘murder and ‘rape’– crimes historially excluded from the list because they were not considered ‘black’ crimes.”   The Fifth Circuit cites for this sentence Judge Wingate’s discussion of the history of this provision in the case McLaughlin v. City of Canton, 947 F.Supp. 954, a 1995 case:

The Civil War, blacks comprised the majority of the electorate of Mississippi, since whites who had supported the Confederacy were denied the vote. Virtually all historians agree that this development was greeted by obstructionist whites with alarm. Virtually all historians also agree that disenfranchising tactics and methods, including literacy and property tests, poll taxes, understanding clauses, and grandfather clauses were adopted in hopes of reducing the enthusiasm and lessening the impact of the black vote. Some historians have remarked that disenfranchising provisions in state constitutions for convictions of certain “black” crimes was one additional method explored.

In one of its opinions, the Mississippi Supreme Court itself has taken this view. Six years after the adoption of § 241, the Mississippi Supreme Court reviewed the new law and remarked that blacks were more likely than whites to be “convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.” Ratliff v. Beale, 74 Miss. 247, 256–66, 20 So. 865, 868 (1896). The Mississippi Supreme Court offered its insights into the intent of the drafters of the 1890 Constitution:

[t]he convention swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain particularities of habit, of temperament and of character, which clearly distinguished it, as a race, from that of the whites—a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone…. Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder, and other crimes in which violence was the principal ingredient, were not.

Id. at 266–67, 20 So. at 868. See also Williams v. Mississippi, 170 U.S. 213, 222–25, 18 S.Ct. 583, 587–88, 42 L.Ed. 1012 (1898) (acknowledging the racist intent of the 1890 Constitutional Convention but refusing to invalidate § 241 because the disenfranchising crimes do not discriminate on their face).

This historical account provided by the Mississippi Supreme Court seems to have substance as evidenced by the evolution of § 241 from 1890 to 1972. Although § 241 of the 1890 Constitutionwas amended for the first time in 1935, the amendments did not affect the enumerated crimes. In 1950, the crime of burglary was eliminated as a disenfranchising crime. See Miss.H.Con.Res. 10 (Feb. 10, 1950) (reported in 1950 Miss.Laws ch. 569). Then in 1968, § 241 was amended to include, for the first time, murder and rape as disenfranchising crimes. See Miss.H.Con.Res. 5 (Mar. 25, 1968) (reprinted in 1968 Miss.Laws ch. 614). If one is to believe the words of Chief Justice Cooper in Ratliff uttered six years after § 241 was first enacted, then the reason why the more “robust crimes” of murder and rape did not make their way into the Constitution until 1968 was because these crimes earlier were not deemed to be “black” crimes.

S0 the Fifth Circuit, noting that it is having to guess state law without guidance (in a case where an inmate was acting pro se guesses that grand larceny was disenfranchising.  What happened next?  This decision came to the attention of the Mississippi Attorney General (via an opinion request), and, in opinions in 1999 and 2000, they got creative and added those crimes listed above to the list.  The theory was that some of the crimes (shoplifting, larceny, unlawful taking possession of a motor vehicle and I suppose receiving stolen property ) were extensions of theft, which is on the list.  I gather bad check prosecutions are taken to be false pretense crimes.   The 2000 opinion is the second one down, here.

It least to me, it seems more than slightly odd that one can spend an unlimited amount of time reading the Mississippi code, constitution, or appeals court case law and find no sign of a provision or case authorizing this.  It originates in a few Fifth Circuit case and a few attorney general opinions.  The whole original basis of this thing is that list adopted with a maximum of racial animus when Mississippi adopted the 1890 constitution.  The oddities are:  1) That the original list was clearly adopted in a way– with racial animus– that would call for it to be struck down under Supreme Court precedent;  2) That the tweaks of 1950 and 1968 purged the provision of that animus;  and 3)  That the list can be “modernized” via attorney general opinions without any action from the legislature.

I’m not the only person to have remarked on this oddity; an article called “A Crazy Quilt Of Tiny Pieces,” on the subject of disenfranchising law, uses Mississippi as a major example of its title thesis.


*I’ll note here that I law clerked for the district court that decided that case and watched the trial.

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