Four Cs

By Matt Franck. Post-Dispatch Jefferson City Bureau, Wednesday, Feb. 22 2006. Sex offenders in the state of Missouri could have their homes searched each and every time a child is reported missing within a 3-mile radius. Click here to read the article.

Thousands of Missouri sex offenders could have their home searched without a warrant each time a child in their neighborhood is reported missing, under a bill that had a hearing this week.

The measure, by Rep. Rob Schaaf, R-St. Joseph, would allow such searches even if law enforcement lacked probable cause to connect the sex offender to a missing child. The bill’s only requirement is that the missing child was last seen within three miles of the offender’s home.

Schaaf said the measure is justified after the abduction of 9-year-old Jessica Lunsford in Florida, whose body was found 150 yards from her home at property where a sex offender was staying.

Schaaf also cited common sense as grounds for his bill. “The reason is simple: When a child is missing and there’s a sex offender in the neighborhood, where should you look first?” he asked at a House committee hearing Tuesday evening.

But some of Schaaf’s House colleagues are balking at the broad authority his bill would give law enforcement. And there’s doubt the measure will be included in a more comprehensive bill being developed in the House.

“It raises all kinds of constitutional questions for me,” said Rep. Rick Johnson, D-High Ridge.

Johnson asked Schaaf why police shouldn’t continue being required to ask a judge for a warrant if they wish to search a sex offender’s home.

Schaaf said that process often leads to delays. More fundamentally, he said, judges would require probable cause, which his bill does not demand.

“When you are a convicted felon, you give up a lot of rights,” Schaaf said in an interview. “I’m willing to give up their rights in order to protect children who have gone missing.”

No action has been taken so far on Schaaf’s proposal, just one of several sex offender bills being pushed by at least a dozen lawmakers this session and most in response to Lunsford’s death. The so-called Jessica’s Laws, which are under debate in several states, share a common theme of mandatory 25-year sentences and lifetime monitoring for certain violent sex offenders.

Amid the bill stampede, some observers say Missouri lawmakers are competing with one another in seeking to throw the book at sex offenders.

“You kind of have one-upmanship in terms of who can be the toughest,” said Rep. Scott Lipke, R-Jackson, who heads the House Crime Prevention and Public Safety Committee.

Lipke is working on a single House bill that would roll together measures from numerous sex offender bills. He said he has not yet decided whether Schaaf’s provision on searching offenders’ homes would be in the substitute bill.

Lipke said he has concerns about the constitutionality of the measure.

In general, leaders in the Legislature have increasingly shown signs of restraint on sex offender legislation. The Senate, for example, is aligning behind a compromise bill that lacks many of the tougher measures filed by lawmakers this year.

Prosecutors across the state have urged lawmakers to step back. In particular they’ve taken issue with bills that would impose 25-year sentences for a broad range of sex crimes, including statutory rape. Critics say such sentences could be a tough sell to a jury, particularly in a case with little forensic evidence.

Jefferson County prosecutor Bob Wilkins has also pointed out that such laws would force virtually every case to trial, potentially re-traumatizing young victims. He says prosecutors need the flexibility to negotiate plea agreements in some cases.

Concerns like those prompted Rep. Jeff Roorda, D-Barnhart, to back down Tuesday from pushing a bill that many described as the toughest filed this year in terms of imposing mandatory sentences. Roorda said he trusts the judgment of prosecutors, many of whom had raised specific concerns about his proposal.

Article from the front page of the New York Times tracks the collateral financial consequences of criminal charges through a variety of examples nationwide.

Article from the front page of the New York Times tracks the collateral financial consequences of criminal charges through a variety of examples nationwide. Click here to read more.

Sex offenders in the state of Missouri could have their homes searched each and every time a child is reported missing within a 3-mile radius. Click here to read more.

Published February 7, 2006. The New York State Senate recently passed a bill that would give life in prison without parole to parents or guardians who cause the death of a child under 14 intentionally or through abuse and torture. Click here to read the article.

The state Senate recently passed a bill that would give life in prison without parole to parents or guardians who cause the death of a child under 14 intentionally or through abuse and torture. Click here to read more

Public Advocate Betsy Gotbaum released the findings of her two-year examination of domestic violence in the city Friday, along with recommendations for improvement.

Gotbaum wants the domestic violence registry to be accessible to the Administration for Children’s Services.

She says it’s important to determine whether a potential adoptive or foster care parent has a history of violence.

Gotbaum’s report, called “Opening the Door,” is aimed at better protecting victims of domestic violence and their families.

Click here to read the article.

Testimony of the New York Civil Liberties Union

by

Marina Sheriff, Legislative Director

Arthur Eisenberg, Legal Director

March 8, 2001

Thank you, members of the committee, for holding these hearings and for giving us the opportunity to address you.

We would like to begin with the following simple proposition: We want everyone to have the opportunity to vote. The power of the people to choose their representatives is perhaps the most fundamental principle of our democracy. For that choice to be meaningful, every voter must have the right, easily exercised, to cast a vote. For that choice to be meaningful, the ballot must contain as inclusive a list of candidates as possible. This committee has heard, and will hear, proposals for election reforms in a wide range of areas including registration requirements, accessibility of polls, form of ballots and voting equipment, ballot access and worker training, to name a few. As you consider these proposals, we urge you to be guided by the basic principle that it is the task of this committee, your fellow legislators, the State and County Boards of Elections and every election worker in the state, to assist every eligible citizen to cast a vote, and to present that citizen with as wide a choice of candidates as possible.

The NYCLU has concerns about a number of different aspects of election reform, and we would be glad to offer assistance on any questions you may have. The Attorney General of the State has issued a report with analysis and recommendations for a wide range of reforms. We support many of the specific recommendations of the Attorney General, but would like to raise here some points that report does not address.

Felon Disenfranchisement

According to a 1998 report by Human Rights Watch and the Sentencing Project, over 6% of African-American men in the State of New York are excluded from the right to vote.¹ This significant disenfranchisement is the result of so-called felon disenfranchisement laws that exclude from the right to vote in New York State those who are serving sentences or on parole.

Felon disenfranchisement laws are a relic of a medieval European tradition by which “infamous” offenders suffered “civil death.” This civil death included the deprivation of all rights, including confiscation of property, and allowed the offender to be killed by anyone without penalty.² This vengeful concept of scapegoating and outlawry has no place in a modern democracy.

Felon disenfranchisement laws by definition target those that are to some degree already disenfranchised from society, whether because they have broken with societal norms, or been targeted by a penal law that does not always operate fairly. Disenfranchising prisoners from the fundamental right to vote sends a clear message that they are outcasts from society, excluded from both the rights and responsibilities of participating in a democracy. Worse, these laws actually silence their voices, excluding them from participation in the selection of those who will represent them in government.

It is impossible, and would be irresponsible, to ignore the fact that these laws serve to disenfranchise a disproportionate number of black and Hispanic citizens. Historically, these laws have on occasion been used with the deliberate intent of disenfranchising black voters. Around the turn of the century, many southern states tailored criminal disenfranchisement laws to target those crimes believed to be committed most frequently by blacks.³

There can be no dispute that these laws currently have a disproportionate impact on black and Latino citizens. The report to which we referred earlier indicates that nearly half of those excluded from voting in New York are black men. Considered in terms of the percentage of the adult population in New York, the report shows that less than 1% of the New York adult population overall is disenfranchised, but over 6% of black men in New York.⁴ One reason for this disparity was suggested in a lawsuit filed in 1993 challenging the law as violating the Federal Voting Rights Act.⁵ The plaintiffs cited a 1991 study by the New York State Judicial Commission on Minorities, reporting that there was evidence of race-based disparity in the State Courts’ conviction rate and sentence type. Specifically, the lawsuit noted that the New York law disenfranchises those serving prison sentences or on parole, but not those serving suspended sentences or sentences of probation, and that black and Hispanic felons are less likely than white felons to be sentenced to probation or to have their sentences suspended. The disproportionate impact of these disenfranchisement laws may stem also from unequal treatment at all levels of the criminal justice system. Recent debate about the Rockefeller Drug laws have brought to the forefront the extent to which those laws are enforced disproportionately against minorities. Specifically, while studies show that blacks constitute only about 13% of drug users, they represent, nationwide, 38% of those arrested, 59% of those convicted, and 74% of those incarcerated for drug offenses.⁶ In New York state, 94% of those incarcerated for drug offenses are black or Hispanic.⁷ As black and Hispanic citizens are disproportionately the subject of the harsh provisions of the Rockefeller drug laws, so are they disproportionately excluded from the fundamental right to vote.

As our criminal justice system moves, dismayingly, towards increasingly harsh penalties, mandatory minimums and restrictions on judicial discretion, these disenfranchisement laws will serve to exclude more citizens from the right to vote. Medieval notions of outlawry have no place in our democracy. Fundamental principles of fairness and respect for the right to representation on which this country was founded demand that we reconsider, and revise, the felon disenfranchisement laws.

College Students

We ask this committee to introduce a simple codification clarifying existing law to prevent the disenfranchisement of college students seeking to register based on their dormitory residences.

Section 5-104 of New York’s Election Law provides that “for the purpose of registering and voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence…while a student of any institution of learning….” The term “residence” is defined as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.”⁸ Election officials have used these provisions to deny registration to college students based on their dormitory residences. This denial is unconstitutional.

A 1972 Federal court decision held that the only constitutionally permissible residency test would be one that focused on an individual’s present intention to make a place his or her home, and that students could not be held to a different standard from other would-be voters.⁹ Consequently, college students may legally register to vote based on their dormitory residence if they meet that test.

Unfortunately, the legislature has never acted to amend the language of the existing law to reflect clearly the proper standard. As a result, we continue to receive reports that college students encounter difficulty registering because election workers read only the statute, not the case law, and apply an incorrect standard. Until the legislature amends the statute to codify the court holdings, hostile or misguided election workers will use the language of the statute to deny registration to college students. It is incumbent on the legislature to amend the statute to ensure the protection of students’ constitutional right to vote. We would be happy to provide assistance in recommending language that would comply with the decision of the court.

Recommendations of the Attorney General

As we mentioned earlier, the report of the Attorney General includes a number of excellent suggestions. In particular, we support walk-in registration, increased training for election workers, preparation and distribution of a voter bill of rights, and the removal of technical barriers to ballot access. A significant increase in state resources may be required to implement the kind of comprehensive reform contemplated by the report of the Attorney General, but we urge you to make that commitment.

We would also like to highlight the section of the Attorney General’s report describing allegations of race and national origin discrimination in voting, including allegations of harassment and intimidation, as well as insufficient deployment of functioning voting machines to minority neighborhoods. While such discrimination is already illegal, the state must take strong and immediate measures to implement safeguards to prevent these practices.

Reviewing the structure of the Board of Elections

We also urge you to address the structural defects of our existing electoral system. Specifically, we believe that the present bi-partisan structure of the Board of elections needs to be re-examined with an eye to moving towards a non-partisan system.

As presently constituted, the State and County Boards of Elections are appointed at the recommendation of the two major political parties. Although this system was intended to provide a balance of power, in practice it likely leads to the marginalization of additional parties and to a system driven by patronage rather than merit. As we saw during the recent controversy in Florida, a system controlled by the Democratic and Republican parties also may not sustain the confidence of voters in a disputed election. The nation watched a parade of election officials on television, identified by their affiliation as Democrats and Republicans, and inevitably questioned whether such a system could be fair and impartial.

We urge the legislature to study alternatives to the existing system and to consider inclusion of other parties, or a move to a Board of independent, non-partisan civil servants. In order to implement meaningful reform, you must replace a system dedicated to maintaining a balance of power between two parties with one dedicated to empowering the voters of this state.

1. ”Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States,” Human Rights Watch and The Sentencing Project, 1998. Table 2 in Section III, based on 1995 and 1996 data from the Bureau of Justice Statistics (see “Losing the Vote” Appendix describing methodology). [↩]
2. Id, Section II. [↩]
3. Andrew L. Shapiro, “Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy,” 103 Yale L.J. 537, 540-543 November 1993. See also Hunter v. Underwood, 471 U.S. 222 (holding unconstitutional an Alabama disenfranchisement provision based on a finding that it was intended to disenfranchise blacks). [↩]
4. ”Losing the Vote,” supra note 1. [↩]
5. Baker v. Pataki, 85 F.3d 919 (2nd Cir. 1996). The District Court dismissed the complaint and was reversed by a panel of the Second Circuit Court of Appeals. After a rehearing en banc, the Second Circuit was evenly divided, leaving standing the dismissal of the District Court. [↩]
6. See “Justice on Trial: Racial Disparities in the American Criminal Justice System.” Ronald H. Weich and Carols T. Angulo; Leadership Conference on Civil Rights, Leadership Conference Education Fund, April 2000. Pages 7 and 27. [↩]
7. Correctional Association of New York [↩]
8. New York Election Law §1-104 (22) [↩]
9. Ramey v. Rockefeller, 348 F.Supp. 780 (E.D.N.Y. 1972) [↩]

“One of the most controversial state-level issues that arose with the debates over the fairness of recent elections is reaching the higher courts as convicted felons and ex-convicts demand the right to engage in the political system.” Click here to read the full story.

by Juan Cartagena, Janai Nelson and Joan Gibbs

17 Feb 2003

One of the greatest achievements of the civil rights struggle was the passage of the Voting Rights Act of 1965, which removed most of the obstacles that kept African Americans away from the ballot box and enabled Americans who did not speak English to vote. But the voting rights movement never reached the last excluded segment of our democracy: our prisoners.

A legal action filed last month seeks to fill that gap in voting rights law. It argues that New York State’s laws that take the right to vote away from many people convicted of felonies disproportionately harms black and Latino communities. As a result, these laws violate the Constitution, the Voting Rights Act and international law.

Currently, 1.4 million African American men in the country – 13 percent of all black men – are disenfranchised because of a felony conviction. This is seven times the rate for all Americans.

While laws vary from state to state, in New York only convicted felons who serve time in prison lose their right to participate in the democratic process. They cannot vote for the entire time they remain behind bars and for any time they are out of jail on parole, when they are required to check in regularly with an officer and meet various other requirements. People convicted of felonies but sentenced to alternatives to prison such as probation retain their right to vote.

In New York, race and ethnicity have a lot to do with whether a convicted felon gets sent to prison. Blacks found guilty of felonies are twice as likely as their white counterparts to be sentenced to prison as opposed to probation. Blacks comprise less than 16 percent of New York State’s population but account for almost 51 percent of the 71,000 people in prison and 50 percent of those on parole. Latinos, about 15 percent of the state population, are almost 30 percent of the prison population and 32 percent of those on parole.

The disproportionate arrest, conviction, and imprisonment of African Americans and Latinos has diluted minority voting strength in New York State since only incarceration triggers the denial of voting rights.

Our three organizations seek to change this. The NAACP Legal Defense and Educational Fund, the Community Service Society of New York and the Center for Law and Social Justice at Medgar Evers College have filed a class action lawsuit charging that New York State laws denying the vote to individuals who are incarcerated or on parole are unconstitutional and discriminatory. They argue that these laws were originally intended to deny full rights to African Americans, and their continued application today disproportionately harms black and Latino communities.

The suit, Hayden v. Pataki, was initially filed in September, 2001, by Joseph Hayden while he was a prisoner in New York. Hayden, who is now on parole, was to represent all black and Latino prisoners denied the right to vote.

Now the three organizations want to add three groups to the original complaint: blacks and Latinos incarcerated on a felony conviction, blacks and Latinos on parole for a felony conviction, and black and Latino voters from specific communities in New York City who are collectively denied an equal opportunity in the political process because of the disproportionate disfranchisement of African Americans and Latinos. These communities include East Harlem, Washington Heights, the Lower East Side, Hunts Point, Morrisania, Soundview, Central Brooklyn, East New York, Jamaica and St. Albans.

The request to expand the Hayden case was made to the U.S. District Court for the Southern District of New York last month. The court is awaiting a response from the governor’s office and the New York State Board of Elections, the defendants in the case. Then it will decide whether to allow the expansion.

New York State has a long history of racial discrimination in its voting laws. Like so many other states, New York enacted these laws when racial discrimination against African Americans was legal and commonplace. As far back as 1777, the framers of the state’s first constitution gave only free men and property holders the right to vote.

In 1821, as a limited number of blacks became free men and property holders, the state constitution was changed to explicitly apply higher property requirements only to men of color. That same year, the state constitution was amended to deny the vote to anyone convicted of what it called “any infamous crime.” By the mid-1800’s, the “infamous crime” disqualification was renewed in New York State with the full understanding that blacks were 13 times more likely than whites to commit an “infamous crime.”

It took the Civil War and the passage of the 15th Amendment to the U.S. Constitution to nullify these laws. Nevertheless, New York State re-enacted the “infamous crime” provision in 1894. This antiquated provision still remains in our State Constitution and is interpreted today to include all felonies, i.e., crimes that may result in jail sentences of one year or more.

Official discrimination against African American and Latino citizens in New York continued throughout the 20th century with literacy tests, English-only election procedures and discriminatory purging of voter rolls. It took the Voting Rights Act to restore a fair election structure in New York. The act targeted three counties in New York City – Bronx, Kings, and New York – requiring special measures to guard against discriminatory voting laws and policies. These provisions remain in force today.

Disproportionate disenfranchisement is made even worse by the fact that the U.S. Census counts prisoners as residents of the communities in which they are incarcerated, not as residents of the communities from which they come. The state uses these Census numbers to shape redistricting decisions that determine state and federal representation. Since all prisons built in New York State since 1982 are upstate, the voting strength of communities of color – mostly located in New York City – is further weakened.

Some argue that people who violate the law should not have a say in determining what the laws should be. Others fear that including convicted felons in the body politic would weaken law enforcement institutions. Senator Mitch McConnell of Kentucky has remarked that allowing convicted felons to vote would mean that “rapists, murderers, robbers and even terrorists or spies” could vote.

These arguments reflect the typical knee-jerk reaction against anything that appears, however minimally, to benefit persons convicted of crimes. In fact, allowing persons who are convicted of crimes to vote may make it less likely a person will break the law again. After all, voting gives people a stake in society and reflects the basic truth about what it means to be a citizen of the United States.

Prisoners and parolees are merely seeking a voice in society. They ask rightfully: What is America afraid of? What legitimate penal interest is served by taking away our vote, our badge of citizenship?

The United States incarcerates more people per capita than any other country in the world. Eighteen European democracies permit incarcerated prisoners to vote, as do Canada and Puerto Rico. In the U.S., only the states of Maine and Vermont do so. No democracy other than the United States bars parolees from voting.

Martin Luther King once wrote, “No nation can long continue to flourish or to find its way to a better society while it allows any one of its citizens to be denied the right to participate in the most fundamental of all privileges of democracy — the right to vote.” At the time – 1965 – King was referring to the need for a law that would ensure the right of all African Americans to vote. But his words apply today to the effects of New York State’s discriminatory disenfranchisement laws.

Juan Cartagena is General Counsel for the Community Service Society of New York. Janai Nelson is Associate Counsel at the NAACP Legal Defense and Educational Fund. Joan Gibbs is General Counsel at the Center for Law and Social Justice at Medgar Evers College. The three organizations represent the plaintiffs in Hayden v. Pataki