I finally had a chance to read Judge Vance’s decision, in which he affirmed Alabama’s power to disenfranchise people convicted of crimes of moral turpitude, but said everyone gets to vote until the legislature defines moral turpitude. It confirmed my initial impression of the decision, as well as my criticisms of Twinkle and her kind.
Overall, it’s a fascinating decision.
The first thing to get straight is what it did not do – say Alabama has to let all felons vote. In Alabama, no one convicted of a crime involving “moral turpitude” can vote. The court affirms that rule:
Let there be no mistake: the State of Alabama does have the constitutional authority to impose such a criminal penalty, and this order should not be regarded as holding to the contrary.
So we can dismiss anyone who throws a tantrum about how this liberal judge mandated that rapists, child molesters, and murderers be allowed to vote. Such a person is using extreme hyperbole, and is not interested in the actual merits of the decision but in whatever impact it may have on their own interests.
Then what did the court do? Alabama can disenfranchise people convicted of crimes of moral turpitude. The problem is that no statute defines moral turpitude; that job has been left to a disorganized mixture of courts, the attorney general’s office, and even individual voter registrars. What the court said was that this situation is unacceptable and only the legislature can define moral turpitude.
Why did the court say that? Well, contrary to what some folks would have you believe, moral turpitude is an inherently vague concept. It means that a crime is bad in and of itself, something that would be wrong even if it was not illegal. This is contrasted with things that are wrong only because the legislature has made them illegal.
That sounds neat and clean, but is a mess in practice. Sure, some things fit readily into one category. Murder, rape, and robbery would obviously be crimes of moral turpitude. Jaywalking is not. But what about bribing a public official? Or possession of marijuana? Or an environmental crime? Those are not so easy to categorize.
Court decisions have not been very consistent, either. Judge Vance explains:
To be blunt, such definitions provide no meaningful guidance on how to distinguish between those felonies that do involve moral turpitude and those that do not. This Court agrees with the conclusion of one commentator that “‘moral turpitude’ is an elusive, vague and troublesome concept in the law, incapable of precise definition; such is evidenced by the myriad of definitions and interpretations in judicial opinions.” Wilson, The Definitional Problems with “Moral Turpitude,” 16 J. Legal Prof. 261 (1991). . . .
(A). Contrast Finley v. State, 661 So. 2d 762 (Ala. Crim. App. 1995) — which held that felony DUI does not involve moral turpitude – with Jarrard v. Clayton County Board of Registrars, 262 Ga. 759, 425 S.E.2d 874 (1993), where the Georgia Supreme Court found that multiple convictions of felony DUI would render the crime to be one involving moral turpitude. If the distinction is explained by the number of convictions, how many are needed to transmogrify the crime into one of moral turpitude?
(B). The crime of moral turpitude in Williams v. State, quoted above, was sodomy. TheCourt of Criminal Appeals concluded there that homosexual conduct, even if consensual, was a crime involving moral turpitude, characterizing the offense “as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description.” 316 So.2d at 365. Today, while “deviate sexual intercourse” — defined in Ala. Code §13A-6-60 – is still illegal, it is now only a misdemeanor under Ala. Code§13A-6-65(a)(3). Under changing societal standards, it would no longer serve as the basis of disqualification under the language of Section 177(b) of the Alabama Constitution.
(C). Selling marijuana is a crime of moral turpitude. Jones v. State, 527So. 2d 795 (Ala.Crim.App. 1988). Selling cocaine isn’t, at least not according to Pippin v. State, 197 Ala. 613, 73 So. 340 (Ala. 1916).12
(D). Here in Alabama, simple possession of marijuana is not a crime of moral turpitude. See Ex parte McIntosh, 443 So. 2d 1283 (Ala. 1983). Conceptions of right and wrong apparently depend on where you live, however. In Oklahoma, for example, a misdemeanor charge of simple possession of marijuana is a crime of moral turpitude, at least in the context of disciplinary proceedings against an attorney. See State ex rel. Oklahoma Bar Ass’n v. Denton, 598 P.2d 663 (Okla. 1979).
(E). In Meriwether v. Crown Inv. Corp., 289 Ala. 504, 268 So. 2d 780 (Ala. 1972), the Alabama Supreme Court concluded that income tax evasion was a crime of moral turpitude. That Court later held that “the failure to pay income taxes, as opposed to the failure to file an income tax return,” is not a crime involving moral turpitude. Clark v. Alabama State Bar, 547 So.2d 461 (Ala. 1989).
Because the term is so vague, what it means will depend largely on the person defining it. Judge Vance:
Under the current process, those attempting to interpret [moral turpitude] must make post hoc decisions, using subjective assessments of what felonies are particularly immoral so as to fall in the category of moral turpitude. This Court has no doubt that when assistant county attorney Theo Lawson attempts to undertake that task, for example, he does so with skill, diligence, and a conscientious desire to do his job correctly. His decisions, however, may differ from those of an equally skilled and conscientious official undertaking the same task elsewhere. A crime that one may regard as involving moral turpitude, the other may regard as not. The problem is, if anything, made worse if the decision-makers are voter registrars who lack the familiarity that attorney Lawson possesses with our criminal justice system. Nor can a court review any such decision without using its own subjective assessment, armed with only the language from the above-quoted cases that shine precious little light on the matter.
In addition to the vagueness, the “post hoc” thing is crucial. Laws are supposed to guide behavior. They can’t do that if the behavior is only declared unlawful AFTER it occurs. That’s what is happening with the moral turpitude provision. The felon does not find out if his crime disenfranchises him until after the conviction.
So the real problem is who gets to define the term moral turpitude The common sense solution would be the legislature. I don’t think anyone would seriously contend that the voting rights of thousands of people ought to depend on the various individual views of judges, or attorneys, or registrars. Judge Vance’s opinion reaches the sensible result. He got there using two different roads.
First, he explained that disenfranchising felons was a criminal penalty. Only the legislature can define crimes and fix the penalties. Courts can only impose penalties authorized by statute. Moral turpitude is such a vague term that any court defining it would, in essence, be fixing the penalty for the crime. Hence, the court would be usurping the legislature’s role.
I don’t know about this one. There’s no disputing that only the legislature can define crimes and authorize penalties. But whether or not a court would be doing that by defining moral turpitude is questionable. I’m thinking of the federal guidelines in particular, but legislative bodies frequently use vague terms in penalty provisions, and courts go ahead and interpret them.
I think his second rational is much better: That leaving voting rights to the individual views of judges, lawyers and registrars violates due process. Here is the court’s analysis:
Mathews described a test involving three factors for determining whether a particular procedure is constitutionally adequate: (1) the private interest at stake; (2) the risk that existing procedures will wrongly impair this private interest, and the likelihood that additional procedural safeguards can effect a cure; and (3) the governmental interest in avoiding these additional procedures. Mathews, 424 U.S. at 335, 96 S. Ct. at 903.13
The private interest at stake is the right to vote, which – as was quoted at the beginning of this order — has been recognized in Reynolds v. Sims as “the essence of a democratic society.” The U. S. Supreme Court later characterized the right to vote as “a civil right of the highest order.” Oregon v. Mitchell, 400 U.S. 112, 139, 91 S. Ct. 260, 272 (1970). This right implicates others, moreover. Under Ala. Code § 12-16-60, a citizen is qualified to serve on a jury only if he or she “has not lost the right to vote by conviction for any offense involving moral turpitude.” Several appellate courts have also recognized that the right to sit on a jury is one of our fundamental civil rights. See United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994); United States v. Thomas, 991 F.2d 206, 214 (5th Cir.), cert. denied, 510 U.S. 1014, 114 S. Ct. 607 (1993); United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.1990); United States v. Gomez, 911 F.2d 219, 221 (9th Cir.1990).
The second Mathews prong focuses on the fairness and reliability of existing procedures. Following Justice Jackson’s dissent in Jordan v. De George, what is in place now puts an individual’s right to vote at the mercy of subjective discretion that is unguided by any meaningful standards. As an aspect of this second prong, moreover, it appears that this problem is easily remedied along the lines of what the separation-of-powers doctrine mandates in any event – for the Alabama Legislature to enact legislation specifying which felonies are to be regarded as involving moral turpitude.
The final Mathews factor asks whether the State of Alabama has a legitimate interest in preserving the status quo of a standard less, post hoc determination of which felonies deprive a citizen of the right to vote. There appears no legitimate interest in maintaining the status quo. Replacing the current process by one in which duly-enacted legislation identifies those crimes involving moral turpitude would appear to benefit all parties, plaintiffs and defendants alike, by promoting clarity and consistency.
That, I think, is solid reasoning and a correct result. The only remaining issue is what to do until the legislature acts. Given the previous analysis, the only thing the court could do was mandate that everyone gets to vote until the legislature defines the terms. Anything else would allow the unlawful activity to continue. This also gives the legislature a big incentive to get to work.
In short, I think this was the correct result. The opinion is well reasoned and extremely deferential to the legislature. I think anyone who criticizes it as an “activist” decision is being very unfair. For something as essential as voting rights, the legislature, not judges or individual officials, is the appropriate decision maker. Imho, the only reason anyone would think the decision is bad is if that person’s party had control of the old decison makers, but does not have control of the new decision makers. In other words, I think critics are mad at the effect the result will have on their party, rather than at the reasoning behind the decision, or the decision considered in the abstract.
I’ll let Judge Vance deliver the conclusion:
We are not dealing with any deprivation of liberty; at issue here is the possible deprivation of a citizen’s fundamental right to vote as a result of a criminal conviction. From the evidence before the Court, thousands of citizens residing in Jefferson County alone have incurred this punishment for their wrongs. Let there be no mistake: the State of Alabama does have the constitutional authority to impose such a criminal penalty, and this order should not be regarded as holding to the contrary. Any imposition of this type of penalty, however, must be in keeping with the protections we all enjoy under our state and federal constitutions, meaning that it must be done in the right way.
In the absence of any legislative pronouncement, neither this Court nor any other court has the constitutional authority to decide whether an individual must surrender his right to vote because of a prior felony conviction. Neither this Court nor any other court may engage in a post hoc determination of the nature of a crime, for such a task must necessarily depend on individual concepts of right and wrong as well as guesswork about what “moral turpitude” actually means, all in violation of every citizen’s right to due process.
Just as this Court may not make such decisions, by the same token the defendants may not either. The task is one for our Legislature to undertake. Only the Legislature has the constitutional power to decide which crimes involve moral turpitude so as to justify the removal of a fundamental civil right for which so many have fought and died.
This Court cannot here restrict the Legislature’s power, moreover. So long as the decision-making process is free of illegal discriminatory motivation, it is the Legislature’s prerogative to decide which, if any, felonies are to be regarded as involving moral turpitude.
All this Court can do now is decide what happens pending any such action by the Alabama Legislature. This Court sees only one choice. Given the fundamental nature of the right at stake, and the language of Amendment 579, the Court must conclude that every citizen otherwise eligible to register in this State may not be denied that right solely by virtue of a prior felony conviction. Until such time that there is a statute on the books specifying which crimes may properly serve as a basis of disenfranchisement, no defendant may take any action to interfere with a citizen’s registration because of any criminal conviction.