RD47 - Restoration of Civil Rights

Executive Summary:
Last year, the prison population in the United States rose for the twenty-eighth consecutive year. This rise in the prison population translates into a rise in the number of people who have lost civil rights. Specifically, felony convictions result in a loss of a variety of civil rights, including, the right to vote, the opportunity for public employment, and the ability to serve on a jury. For example, in Virginia, convicted felons forfeit their right to vote, (*1) serve on a jury, (*2) carry a firearm, (*3) and suffer a restorable loss of public employment opportunities, including the right to hold public office (*4) and be a notary public. (*5) Furthermore, although it does not constitute an absolute prohibition, various professional boards may refuse to grant, or may revoke, a professional license. For example, after conviction of certain felonies, Virginia prohibits persons from working in certain locations/professions, such as mental health facilities, child welfare agencies, and family daycare homes. (*6) Of these consequences, the loss of the right to vote is arguably the most controversial. The fact that the felon population continues to rise exacerbates this controversy. As the number of convicted felons continues to increase, so too will the number of convicted felons disqualified from the voting process.

The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments to the United States Constitution guarantee the right of all United States citizens over eighteen years of age to vote. (*7) The right to vote is a fundamental right and restrictions on it must pass strict scrutiny review. However, strict scrutiny analysis may only require the state to demonstrate that a regulation denying someone the right to vote is narrowly tailored to promote a significant interest. A restriction on voting must be reasonable and non-discriminatory. Accordingly, in the case of Richardson v. Ramirez, the United States Supreme Court held that Section Two of the Fourteenth Amendment justified a state's denial of the right to vote to persons convicted of a felony. (*8) Thus, although the right to vote is fundamental, the Fourteenth Amendment allows states to strip felons of their right to vote.

A 1998 study estimated that 3.9 million Americans have either currently or permanently lost their right to vote due to felony convictions. (*9) Of these, an estimated 1.4 million were ex-offenders who had already completed their sentence and another 1.4 million were on probation or parole. (*10) It was further estimated that over one-third of the population disqualified from voting consisted of African-American men. (*11) All but two states have laws denying felons or ex-felons the right to vote. Less restrictive states provide for automatic restoration of the right to vote upon final discharge or at the end of incarceration. However, Virginia is among the most restrictive states denying the right to vote. Specifically, in the Commonwealth, the restoration of the right to vote is not automatic and can result in lifetime forfeiture absent executive clemency. As a result, the number of disqualified voters is particularly susceptible to increase in Virginia. Although Virginia has approximately 270,000 voters that have been disqualified in this manner, under the last four governors it has been stated that only an average of 134 per year had their right to vote restored. (*12)

Over the past several years, several bills have been introduced during the Virginia General Assembly Sessions addressing the restoration of civil rights for persons convicted of felonies. After unsuccessful attempts to pass legislation during the 2001 Session of the Virginia General Assembly, it was requested that the Virginia State Crime Commission study the issue. Pursuant to this request, the Chairman of the Crime Commission authorized the formation of a Task Force on the Restoration of Civil Rights for Persons Convicted of Felonies, and appointed the Chairman. This study includes the findings and recommendations of the Task Force that have been formally adopted by the Crime Commission. Specifically, this study includes an analysis of Virginia’s laws regarding the restoration of civil rights for persons convicted of felonies, as well as a comparison of laws across the United States with specific focus on the relevant laws in neighboring states. Additionally, this study outlines the applicability of the restoration process in the Commonwealth.

A. Findings

The Task Force on the Restoration of Civil Rights for Persons Convicted of Felonies found the following:

• Approximately 270,000 Virginians have lost the right to vote, translating to 4% of the eligible voting population. Of these Virginians, approximately 216,600 were ex-felons that had completed all of their sentences, including probation and parole.

• From 1986 to 1998, Virginia governors granted approximately 1,743 applications for the restoration of civil rights.

• In 1999 and 2000, the Governor granted an additional 43 applications. In 2001, the Governor granted 74 applications.

• The Secretary of the Commonwealth is keeping a record of the number of 90-day petitions they have received. In 2000, their office received 6 petitions from circuits and all 6 were granted. In 2001, their office received 21 petitions and 20 were granted.

• Currently, the only means by which felons in Virginia can regain their civil rights, including their right to vote, is through the Governor.

B. Recommendations

• Amend the Code of Virginia § 53.1-231.1 to require that the Director of the Department of Corrections provide notice to felons, on completion of sentence, of the processes to apply for restoration of voting rights and civil rights.

• Amend the Code of Virginia § 53.1-231.1 to require that the Director compile information on the Department’s compliance with the notification requirements on an annual basis and report these findings the Virginia State Crime Commission.

• Amend the Code of Virginia § 53.1-231.1 to require the Virginia Supreme Court to ensure that standardized petition forms are available at all Circuit Court Clerks’ offices.

• Non-violent felony offenders be given restoration of voting rights after 5 years.

• The Virginia State Crime Commission shall determine the administrative steps necessary for restoration and the legal definition of a non-violent felony.
(*1) Art. 2, § 1 of the Virginia Constitution
(*2) Va. Code § 8.01-338
(*3) Va. Code § 18.2-308.2
(*4) Art. 2 § 5 of the Virginia Constitution
(*5) Va. Code § 47.1-4.
(*6) Mental health facilities (Va. Code §§ 37.1-183.3, 37.1-197.2); child welfare agencies and family daycare homes (Va. Code §63.1-198).
(*7) John Nowak and Ronald Rotunda, Constitutional Law, § 14.31 (2000). 2 Richardson v. Ramirez, 418 U.S. 24 (1974).
(*8) Richardson v. Ramirez, 418 U.S. 24 (1974)
(*9) Jaime Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Human Rights Watch and the Sentencing Project, October 1998.
(*10) Id.
(*11) Id.
(*12) Give Back the Vote, Opinion, Washington Post, February 23, 2001.