Alabama, Felons, Moral Turpitude, And Voting, Part 2

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.

Advertisements
Explore posts in the same categories: Alabama Court Decisions, Elections

14 Comments on “Alabama, Felons, Moral Turpitude, And Voting, Part 2”

  1. Kathy Says:

    A question: does the AL legislature have the right to include a crime in the “moral turpitude” category if the US Supreme Court has decriminalized the action, and effectively voided AL law, e.g., Lawrence v. Texas?

  2. demopolite Says:

    I think that the fact that they “cannot” be convicted of the crime makes the question of whether it fits into the definition of “moral turpitude” moot. Any conviction for, say, consensual sodomy would be overturned per Lawrence; thus, there would be no conviction upon which to base a denial of voting right.

  3. Dan Says:

    Thanks for the update, Wheeler. I stand by my original worry, though. We’re going to let the Alabama legislature define “moral turpitude”?

  4. wheeler Says:

    dan,

    i’m with you. i’m sure the end results will be pretty outrageous.

    kathy,

    i concur with demopolite.

  5. Kathy Says:

    Thanks, y’all. Not that it won’t stop Hank Erwin or Gerald Allen from trying.


  6. […] Original post by Wheeler and software by Elliott Back […]

  7. Kathy Says:

    or “will stop”, once I proofread…

  8. Lee P Says:

    Wheeler,

    “Well, contrary to what some folks would have you believe, moral turpitude is an inherently vague concept.”

    I see that by “some folks,” you mean me. If you’re gonna make a jab at me, at least try to leave a mark, will ya?

    I agree with you that “moral turpitude is an inherently vague concept.” In fact, I admitted as much on my blog yesterday. Here’s what I said:

    “When interpreting a Constitution or a statute, judges are often required to give meaning to a term or phrase that is either ambiguous or not completely defined. Much of the time, this perceived “fault” in the law is by design, intended to provide flexibility in interpretation and execution. Sometimes, lawmakers merely assume that certain words and phrases possess a commonly accepted meaning that would make any further definition superfluous. In any case, it is a judge’s duty to apply the law as it is written, not as he wishes it had been written.”

    Now…my assumption there, in case you didn’t catch it, is that the phrase “moral turpitude” is one of many terms or phrases “that is either ambiguous or not completely defined.”

    I went on to say:

    “Just because some parts of the U.S. Constitution and our state constitutions are vague doesn’t make them void.”

    Ditto…same assumption.

    Just thought I’d set that straight.

  9. Lee P Says:

    Wheeler,

    Let’s assume for a moment that Troy King had not appealed this decision to the Alabama Supreme Court. In your opinion, what would the impact of Judge Vance’s ruling be with respect to this November’s election?

    More specifically, would you agree with the following 5 statements?

    1) The ruling mandates a change to voting rules and procedures, so it must be precleared by the U.S. Justice Department,

    2) If DOJ officials preclear the new rules before November, the ruling will take effect and state elections officials will be required to abide by it,

    3) Until the legislature specifically defines those crimes which “involve moral turpitude,” all people who have been convicted of felonies, including those who are currently incarcerated in Alabama prisons, will gain the right to vote following DOJ preclearance, unless they are otherwise disqualified under Amendment 579 (e.g. because or age or residency),

    4) Assuming preclearance by DOJ…If the legislature fails to define “moral turpitude” in a special session prior to the November election, Judge Vance’s ruling will require that all convicted felons be allowed to register to vote, and

    IF those statements are true, and 1) DOJ awards its preclearance, 2) the legislature does not address this issue in the next two months, then all convicted felons will be allowed to vote in the November election, as long as they register within the time frame set by law…correct?

    If I’m wrong, please let me know, because those assumptions led me to observe that: “If Judge Vance and SOS Worley are allowed to have their way, then murderers, rapists, and child molesters will have the same voice as we do in this November’s general election.” Is that a “tantrum” or is it the truth?

  10. Lee P Says:

    Four statements…sorry. I was counting on my fingers and somehow forgot to lower the middle one before I started. 🙂

    (Just kidding…I enjoy debating people who disagree with me. Especially intelligent ones like yourself.)

  11. wheeler Says:

    lee,

    i thought you were being a bit hard on the good judge; hence the jab.

    for the substance:

    first, assuming the decision would not be appealed is a HUGE assumption. there was no way in you know where that this decision would not be appealed. so there is no way in you know where that anyone is going to vote in november who could not have already voted in november.

    second, making the assumption anyway, the decision would NOT have mandated that people currently IN prison could vote. that is a whole other ballgame, because the question isn’t whether their conviction prohibits it, it’s whether the fact of incarceration prohibits it. in other words, there are lots of things prisoners can’t do while in prison that they would be perfectly free to do when they are not in prison. so that they could vote if free does not necessarily mean they can vote while in prison. maybe they can, but it would take another lawsuit for it to happen. and, given the extreme hassle of getting the machines into the jails, i’m sure that the state would win any lawsuit over the issue. of course, win or lose, it would never be resolved before november.

    really, my only point here is that this decision (the result at least) just makes good sense. if we are going to punish people by disenfranchising them, it ought to be clear before hand what crimes cost the criminal the right to vote. and that decision – i think everyone would agree in principle – is best made by the legislature. for judges or officials to do it is either going to require case by case determinations, which undermines the proscriptive purposes of the law, or else a judge to set out a definitive list of what crimes are of moral turpitude, which looks awfully like “legislating from the bench.”

    i don’t think this opinion is going to survive the appeal. but i hope the legislature will take its advice anyway.

    btw, i think our blogs are good foils. i always look forward to your responses. they keep me honest.

  12. Lee P Says:

    Wheeler,

    The question I’m getting at is this: What will the impact of Judge Vance’s ruling be if it goes into effect and the legislature fails to act?

    I think I’m hearing that you agree that – absent action by the legislature – it will give the right to vote to all people who have been convicted of felonies, with the possible exception of those who are currently incarcerated. That’s exactly the way I see it. The way I read it, it is also broad enough to include those who are currently serving time, but I’m willing to concede that that’s not certain.

    That that outcome – even if it is only temporary, awaiting action by the legislature to define “moral turpitude” – flies in the face of what Amendment 579 requires:

    “No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability.”

    As I said in a comment over on my blog:

    “It is clearly an intent of Amendment 579 (and of Article VIII, [which it replaced]) that certain felons are to be forbidden from voting, irrespective of how or even whether the legislature defines “moral turpitude.” Amendment 579 must be read in a manner that applies a commonly-accepted definition to that term, with the understanding that its inherent ambiguity leaves room for interpretation. If the legislature wants to provide additional guidance, then that’s fine, but not required. If it were, then the legislature would have supremacy over the Constitution.

    “Disqualification of felons from voting is not a criminal penalty. It is a constitutional requirement based on the state’s preorgative to establish voter qualifications. It is no different, in that respect, from setting the voting age or residency requirements. Like those requirements, it is not dependent on an act of the legislature for it to be effective.

    “I think you [and many liberals] misunderstand what conservatives mean when they say “judicial activism.” It is not “activist” for a judge to interpret vague or ambiguous words and phrases in a way that recognizes their proper meaning. By “proper,” I mean the way they would have been understood by an objective and knowledgable person at the time they were written.

    “So, when a judge is faced with a phrase like ‘moral turpitude,’ he has to ask 1) How has this phrase been interpreted in the past? 2) What was it “understood” to mean at the time it was written? 3) Have the legislative or the executive branches provided any further guidance? If so, is it appropriate to defer to their judgment in interpretation? If not, why not? What do I know that they don’t know?

    “Summarizing…

    The disqualification of felons from voting is required by the state Constitution. The Constitution does not require the legislature to define “moral turpitude” for this disqualification to have effect, nor does it assume that the legislature will define the term. Amendment 579 assumes that such a thing as “moral turpitude” exists, that it is a quality of certain felonies, and that its meaning is well-enough understood that no complete listing of crimes possessing this quality is necessary or even desirable. For a judge to say that the amendment is void until the legislature has acted is contrary to the structure and text of both the amendment and the state constitution.”

  13. wheeler Says:

    lee,

    to answer your first question, if the legislature fails to act, that means every non-imprisoned felon gets to vote. but that would be the legislature’s fault for not acting. the judge just told them to do their job, it’s not his fault if they do not do it.

    and don’t forget, this is all hypothetical. that opinion is not going into effect. it will be stayed during the appeal. and it will get reversed.

    now, onward and upward,

    “Disqualification of felons from voting is not a criminal penalty. It is a constitutional requirement based on the state’s preorgative to establish voter qualifications. It is no different, in that respect, from setting the voting age or residency requirements. Like those requirements, it is not dependent on an act of the legislature for it to be effective.”

    it is a penalty, but one that is mandated by the constitution. and it is not like age or residency requirements. there is not much room for debate about whether someone is or is not over 18. now if the legislature had said: “No one under a certain age can vote.” THAT would be like prohibiting those convicted of crimes of “moral turpitude” from voting. in each case, the term is so vague as to be meaningless. we could apply all your interpretive questions and still not come to a definitive meaning. it would vary with the interpreter.

    i think the judge is correct that it violates due process to use such a vague term to limit such an important right. it leaves voting in the hands of individual judges and officials.

    you can analygize it to city ordinances about parades, or things like that. because permits for parades were often used to discrimnate on the basis of speech, scotus long ago said the requirements for a permit had to be objective, clear, content neutral, and leave no discretion to the official providing the permit.

    it’s similar here. sure the state can regulate voting, but they need to do so clearly and objectively. “moral turpitude” is anything but clear and objective.

    the remedy is a clear definition. so the issue is who should define it? it could be an ad hoc mixture of state officials – as is the current situation – or it could be the alabama supreme court, or it could be the legislature. this is where i think the court was extremely deferential. “it is the province and duty of courts to say what the law is.” so judge vance could have defined it himself, and thereby solved the problem. but he punted it to the legislature.

    to me, judge vance’s decision sounds like the exact opposite of what “conservatives” usually call activism. as we’ve all heard ad nauseum, they don’t want judges who “legislate from the bench.” you say i’ve misunderstood the term. i say i’m only taking it as it comes from “conservatives” like twinkle, mini-moore, and dubya. they constantly use that phrase. so if they really want “judicial restraint” they ought to applaud this decision.

    but in one sense you are correct that this is an activist decision. that’s because for “conservatives” like those i mentioned “activist” decision means “decision against my interests” and nothing more. because this is (in her mind) against twinkle’s interests, for her it is an activist decision.

    would her reaction be any different if judge vance had defined “moral turpitude?” i think we both know the answer. that only felons convicted of crimes involving moral turptude get disenfranchised means some felons DO NOT get disenfranchised. so if he had defined it, then some felons would get to vote. i’d bet the rest of my salary for this year that had judge vance done so twinkle would have released the exact same statement to the press: “activist judge lets criminals choose our state leaders.”

    one the one had, judges are evil because they overide the will of the people by reading vague constitutional provisions so as to protect “sodomites.” on the other hand, judges are evil because they refuse to interpret a a vague provision and instead make the legislature do it, with the result that in the interim criminals might get to vote. the sin is the result, not the interprative method.

    for most conservatives, conservative result = good judge. non-conservative result = bad judge. that’s all that matters. cries about interpretation and activism are nothing but smoke screens.

    you may be more principled. but you are the exception, not the rule.

  14. Ken Says:

    Once prisoners in Alabama get out of jail, who do they contact to register to vote? Thank you for your time, my email is clargurl68@aol.com


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: