Four members of VOTE’s staff, all working hard to encourage civic engagement of people throughout the community, will continue to be denied the right to vote along with thousands of members and constituents living on probation or parole across the state. The named plaintiffs include college graduates, veterans and faith leaders. The good news, however, is that Act 636, effective March 1st 2019, will solve half the problem, and even the NFL is hailing VOTE’s work to create voting rights and equal opportunities.
One reason the case may have been dismissed is because the legislature changed the laws and, as the Secretary of State wrote in opposition to the writ, Act 636 will end the suspension of voting rights for roughly 40,000 people on probation- unless they commit a probation violation and go to prison. This leaves roughly 30,000 people on parole, barred from voting, as they have been out for less than 5 years.
The Court’s decision is a reminder of the many barriers built and defended to, ironically, keep people from 'doing the right thing.' In a state that struggles to get more than 20% of people to vote, denying participation to so many people contributes to the demise of democracy and legitimacy of elections. For people recovering from a criminal conviction, attempts to assimilate into society can be futile. One might think such hurdles were enacted to prevent crimes, yet most barriers prevent housing, impede education, block employment, and bar voting.
“We weren’t even making a moral argument, which we could have,” says Bruce Reilly, VOTE deputy director, member of the legal team, and himself disenfranchised. “Our case is built on the reality that the voters were played by a bait-and-switch back in 1974. I’m disappointed, but not surprised, that the Court didn’t want to go there. Galileo faced the same problem back in the 16th century, trying to get the court to look into the telescope, to prove the earth rotated around the sun. Instead, they placed him under house arrest.”
This case turned on the interpretation of a phrase, “under order of imprisonment,” where lower courts agreed that the definition (to include people in prison, on parole, and on probation) was correct, despite being crafted several years after the constitution was ratified. Yet the lower courts refused to follow established legal standards to reach their rulings. It is hard to trust the process when the process is ignored. The legal standards call for courts to consider what the voters believed they were voting for, particularly when a word of phrase does not a hold a common everyday plain meaning. Rather than conduct an inquiry, six members of the Louisiana Supreme Court remain silent.
Chief Justice Johnson has been an attorney for 50 years, and a judge for 34 years. While she saw the merits of the case clearly to be on the side of VOTE, it is disappointing that the other justices did not even see the controversy as worthy of consideration. Such a move begs critics to see courts as an extension of political theatre, rather than a place of reasonable minds and rigorous inquiry. The Chief Justice's own research unearthed what may be the origin of the phrase “under order of imprisonment,” which is not a part of the Louisiana criminal code. Back in 1876, when an incarcerated person wanted courts to correct his deficient "order of imprisonment," he filed for “habeas relief” to be released from incarceration. Today, however, an order of imprisonment is equated to the “threat of” imprisonment, which everyone in America actually faces. The path to tyranny is a slippery slope.
Furthermore, even if the denial of a fundamental right were clearly written into law, the legality of it would require a “legitimate state interest” for why this right were being denied, and whether this was the least intrusive way to deny the right. This judicial review serves as a check on legislatures or mob rule run amok, and is one of the basic “checks and balances” under American democracy. In this case, the Court did not even want to weigh the matter- thus relegating “voting rights” to a whimsical privilege. Yet as Chief Justice Johnson writes, “There is no legitimate reason for disenfranchising these citizens.”
Although this chapter of the story concludes, VOTE v. Louisiana will be remembered as a lawsuit that united the brilliance of so many people and organizations, all of which contributed to our overall cultural shift. This historic litigation owes special thanks to Professor Bill Quigley (lead counsel), Advancement Project (appellate counsel team, particularly Denise Lieberman and Jennifer Lai-Peterson), League of Women Voters, American Probation and Parole Association, The Sentencing Project, Professors Andrea Armstrong, Davida Finger, and Lawrence Powell, and NAACP-Legal Defense Fund. Additional thank you to those attorneys who joined the fight before there was even a light at the end of the tunnel: Ron Wilson, Rob McDuff, Anna Lellelid, Vanessa Carroll, Ilona Prieto, Alexis Erkert, Patrick Murphree, and Megan French-Marcelin.
This case would be nothing without the courage of our plaintiffs: Kenneth “Biggy” Johnston, Bruce Reilly, Checo Yancy, Randy Tucker, Bill Vo, Huy Tran, and Ashanti Witherspoon. VOTE v. Louisiana was a model of 'movement-based lawyering' just that, a testament to self-empowerment, and an example of unity between jailhouse lawyers and allies. Regarding future legal filings... join VOTE's email list and stay tuned!
“No Surrender, No Retreat!” - Checo Yancy
Recap of Reentry Week: Major updates in housing, employment, voting rights, and a political prisoner comes home.
Over 100,000 people were released from prison during the first annual Reentry Week. While much of the focus was on government agencies improving their awareness of challenges we face, a few directly impacted people and organizations were given an opportunity to talk about solutions. From New Orleans to Los Angeles to the White House, formerly incarcerated people are living testimonies to the maxim: People closest to the problem are closest to the solution.
New Orleans’ new housing policy gets national recognition
Reentry Week Monday: Voice of the Ex-Offender (VOTE) joined our allies Stand With Dignity, the Vera Institute of Justice, Greater New Orleans Fair Housing Action Center, and Southeast Louisiana Legal Services to educate HUD’s Deputy Secretary, Lourdes Castro Ramirez, about the importance of our revolutionary public housing policy that allows people to reunite with families despite having a past criminal conviction. VOTE's Norris Henderson and Bruce Reilly, along with members of Stand With Dignity, expressed the historical implications of HUD's current exclusion policies, the comprehensive oppressive impact, and how we came together to make our proposal happen.
It is important for top government officials to understand the typical genesis of social justice reforms. Some know from their experiences, and some also forget. First, impacted people complain amongst each other and start to vocalize and submit their requests and petitions for policy change. They are ignored. They start to organize, understanding that they are not the only one, focus on the government official or agency as a target, and amass their data, their stories, their coalitions and their strategies. After several years, the agency starts to understand that the status quo they had been enforcing is hurting, not helping, the community. Then a reform begins to take shape, at times whittled down from the directly impacted people’s original needs.
When the reform is announced and embraced, all too often the impacted people are either left behind or relegated to props for a politician or policy makers. The work by impacted people in the criminal justice sphere is beginning to be seen as irreplaceable by allies who fight for our cause. This strange schism would likely not exist except for the dearth of convicted people working at many organizations that fight for the rights of convicted people. Ultimately, we need to forge those bonds more tightly, and the most effective way would be for their staffs, particularly senior leadership, to be at least 50% people with conviction histories.
The current tone, exemplified by Deputy Castro Rodriguez, is positive. It is important to remain in this space of collaboration, and continue forward in tackling deeply rooted dilemmas constructed through mass incarceration. 17,000 people were released on Monday.
Voting Rights: A 150 Year Struggle Continues
Reentry Week Wednesday: the Louisiana House of Representatives contradicted their actions from just a day before, and went against the principles of rehabilitation, reentry, and assimilation by maintaining disenfranchisement for 70,000 people on probation and parole in our communities. “Nay” votes included nineteen people from the Orleans Parish, Jefferson Parish, and Capital Region of Louisiana, i.e. the most impacted areas of the state, including Orleans representatives Raymond Garofalo, Stephanie Hilferty, and Christopher Leopold. Had fourteen of those people voted in favor, the state would have sent another positive message: People who want to be part of civil society are welcome to do so.
Louisiana, for now, leaves in place the structural legacy of slavery, at a time when there is a legal and legislative battle to tear down the monuments of Rebel leaders, led by a grassroots coalition #TakeEmDownNOLA. Whereas slavery was not entirely abolished after the Civil War (instead requiring a conviction to enslave someone under the 13th Amendment), directly impacted people were without real voting rights for a century. None of this had even a hope of changing- until now. Of all the dastardly tactics to deny voting rights (Literacy test, Understanding obscure clauses of the Constitution test, poll taxes, whether your Grandfather could vote, or plain old violence and intimidation), disenfranchisement based on convictions is the last overt barrier to protecting citizenship for all. We are fourteen votes away.
Our work to extend voting rights to everyone in the community extends beyond Louisiana. On Friday, Virginia’s governor decided to stop creating a civic death sentence in their state, and restore voting rights to 200,000 people who have completed all prison, probation and parole. Today, the GOP lawmakers in Virginia publicly announced they are hiring a lawyer to challenge this determination in court. This illustrates the problem of when the fundamental element of a democracy, voting rights, has turned into a partisan battle.
Virginia’s governor, as former Democratic Party chairman, and friend of the Clintons, likely expected this outcome. Fortunately, the Governor will need to defend his decision on non-partisan legal grounds; although if there is a chance to rule on the issue simply based on his authority to act (without getting into the merits of the action), the court would likely take such an easy out. Similarly, because civic death sentence is so out of line with modern American values, the GOP lawyer is likely to focus on the Governor’s authority rather than the merits of his decision.
Our people speaking truth to power in the White House
Reentry Week Wednesday: the White House announced its Champions of Change, ten people on the ground who are paving the way with hard work in different arenas. Among this group of leaders is Dorsey Nunn, a true leader among leaders. Dorsey is the only formerly incarcerated person serving as the executive director of a law firm (Legal Services for Prisoners with Children), and he has so much credibility he needs no law degree. He is a co-founder of All of Us or None (the group who started the Ban the Box movement), and president of the Formerly Incarcerated, Convicted People and Families Movement (FICPFM), which began when directly impacted leaders began to consolidate their efforts from around the nation.
Dorsey dropped the proverbial mic in the White House days before President Obama literally did. Drawing strength from his “Homies,” he kept it real, particularly pointing out the misguided trend of reserving reentry and rehabilitation only for the so-called “first time non-violent offenders.” His inspirational message included the power of informal education gained in prison from elders, writers such as Fanon, Orwell, Ellison, and in the Black Panther Party newspapers.
Dorsey also let Congress know that their proposed Fair Chance Act (for employment) should include Banning the Box for contractors doing business with the federal government. Especially as FICPFM and allies already pushed the President to sign an executive order banning the box in federal government, this is the natural next step. It would serve as a legitimate blow to structural discrimination and structural racism. In Dorsey Nunn’s parting words:
“If you can see me as an asset instead of a liability or a disabled person, then maybe you will invest in me in a different way. I don’t think y’all see me for who I am, I think y’all see me for what you need to do with me, instead of thinking about what you might do with me.”
See the entire panel below, with Dorsey Nunn beginning at 1:55.
The Federal government makes moves on housing policy
Reentry Week Wednesday: Congresswoman Maxine Waters of California unveiled the Fair Chance at Housing Act of 2016. This addresses the discrimination people face with entry to public housing programs and the quickness for which they are evicted. This is legislation FICPFM has been calling for since releasing the 2013 report, “Communities, Evictions, and Criminal Convictions.” Rather than addressing these problems one by one, as VOTE has done in New Orleans, a federal program should be reformed at the source.
“The current harsh policies for housing assistance are a direct result of the harmful and ineffective legacies of the War on Drugs and the War on Crime,” Waters said. “Far too many Americans now carry a criminal record that limits their opportunities throughout life, despite the fact that they have successfully rehabilitated or taken great strides to change their lives. In particular, it has restricted access to housing assistance, which is a critical part of the rehabilitation and reentry process.”
This is a bill that every reformer in Congress needs to embrace, as HUD’s mission is to address the housing dilemmas of low-income communities. The Fair Chance at Housing Act directly builds upon the agency’s growing awareness that the stratification of families due to convictions was a failure. By pushing people from low-income communities, people became widgets for corrections budgets rather than employment, housing, or education budgets. After prison, we were placed in limbo for decades- and society may finally be prepared to turn the corner, turn us from ‘widgets’ into people, from problems into assets, and whittle away at the structural disparities created during the past five decades of a militarized Drug War.
17,000 people were released on Wednesday.
Reentry Week Thursday: HUD held a massive webinar attended by people all over the nation; so many people logged on, even this writer could not log on. They discussed the need to focus on reentry problems, and highlighted the work in New Orleans as an important step. This is huge. It validates the work of so many people who were formerly dismissed as disgruntled activists. People who never received a penny for all the writing, the testimony, the organizing, even the all-night vigil we held to reinforce the reality that we are going to sleep somewhere, regardless of where we are allowed. It also highlights the sad reality that the jails do not turn people away, we also make room for more cages, and society has been using cages as a costly method of dealing with homelessness, joblessness, mental illness, and addiction. Costly both in dollars and in lives.
17,000 people were released on Thursday.
One Man’s Reentry: Gary Tyler leaves Death Row far behind
Reentry Week Friday: Gary Tyler became one of roughly 17,000 people released on that day. Gary was sentenced to death after, at age 16, his all-black school bus came under attack by an all-white mob opposing forced integration in 1974. Gary’s legal case is extraordinarily typical in explaining the too long, and too narrow, path to release from a wrongful conviction. A path that most wrongfully convicted people can never complete.
Gary was sentenced to life without parole after his death sentence was considered unconstitutional. When his mandatory life without parole sentence was also recently considered unconstitutional, a new opportunity arose to resentence Gary, and at this point he had amassed international support as a political prisoner. The evidence didn’t actually add up in his case, but first we had to decide killing children was cruel and unusual. Then we had to decide mandatory sentences to die in prison, for children, did not take into account our children’s underdeveloped brains and that youth should be a mitigating factor in sentencing. Instead, this concept of the “Super Predator” has arisen with a false belief that young people who do wrong prove that evil is in their hearts, that we are born this way.
Louisiana is in the process of creating a new sentence for the 299 other people, like Gary Tyler, who need a new sentence. Last week at the legislature, VOTE testified in opposition to a bill that would set parole eligibility, for those sentenced to a Life sentence, at 35 years. This is far too high, out of step with the rest of the nation, and does not create the “meaningful opportunity for release” mandated by Miller v. Alabama.
Meanwhile, in another room, VOTE testified in support of closing the loophole on adult Life parole eligibility. The current law known as 20/45, requires people to be 45 years old with 20 years behind bars to be eligible for parole. This is a law first drafted by the Angola Special Civics Project, the precursor to VOTE. The loophole, however, is that people younger than 25 would end up serving more than 20 years prior to eligibility. It only makes the case that 35 years, for children, is far too much. If 35 years becomes the law of Louisiana, there will certainly be further litigation claiming this is unconstitutional. All this to say only 3% of people leave prison on parole.
Like many wrongfully convicted people before him, Gary pled guilty to manslaughter and a sentence he has long since completed. People seeking to contact Gary Tyler can reach out to VOTE through our website or P.O. Box, and we will forward correspondence.
Reentry Week continues every week, until everyone comes home
There are 100 million people with convictions, and most were sentenced to probation rather than prison. Today, another 17,000 sons and daughters were released from incarceration while many thousands more were convicted. We represent all ethnicities, religions, neighborhoods, and a range of political beliefs. All of us are struggling with a lifetime of discrimination and exclusion, regardless of what we did in the past and who we are today.
If law enforcement ever focuses on, for example, the prevalence of ‘white-on-white crime,’ along with the concentrated use of drugs in college dorms by people age 18-25 (i.e. the dominant age group of people entering the criminal justice system), then we can have a genuine conversation about the criminal justice system in a way that avoids the nation’s historic struggle with racism. Until that time however, convictions are a proxy for race, and discrimination resembles the same things fought for over the past century. This is true whether people are aware of it or not.
It is not only people with convictions who need education. We must educate the disconnected public, including policy makers, about our abilities, our families, our hurdles, achievements, and dreams. We don’t have the big microphones, and as Dorsey said: he may not be back in the White House again. So he, FICPFM, VOTE and others travel to these spaces and do what we can to provide this education.
Mass incarceration is gutting our nation from the inside, bankrupting us morally, politically, and financially; and history will likely place the American gulag and corresponding Drug War into a space of errors and evils, sitting alongside slavery, Jim Crow, female disenfranchisement, Native American genocide, and Japanese-American internment camps.
In the words of Franz Fanon, “the peasant doesn’t have to talk about the truth, the peasant is the truth.” And we are trying to educate others through our words, deeds, and mere presence. Reentry.
The crime and safety statistics of New Orleans, the most incarcerated city in America, is practically unremarkable. While still having one of the higher crime rates among 100 cities, and a bloated murder rate, it does not make anyone’s “Top 10 Most Dangerous Cities” listings. Despite this, the answer to nearly every social or public health problem is a cage, tasking the likes of our District Attorney, Sheriff, judges and public defenders with solving addiction, homelessness, mental illness, lack of education, and unemployment. It is no mystery why these solutions systemically elude us.
Prior to the Civil War, there was no need for convict labor for large public projects such as the levee system. There was also no need to disenfranchise massive numbers of people when elections came down to contests between wealthy white men. The slave system maintained the status quo for as long as historically possible. Too long, of course. And where power is threatened, the powerful will generally take action to assure threats are eliminated.
In 1868, Louisiana expanded the class of convicted people who were denied voting rights. It went from the white men who were convicted of forgery, bribery, and perjury to barring all men (Black or white) who were “under order of imprisonment.” Meanwhile, the labor force continued nearly uninterrupted because the 13th Amendment allowed slavery to continue as long as people were convicted of crimes. As one plantation owner famously remarked, “before we used to own them. Now we just rent them.”
The equation is simple:
Conviction + Disenfranchisement = Hard Labor – Political Power to Change.
This arrangement went largely untouched for 150 years. Along the way, Louisiana became the most notoriously creative in ways to suppress Black voting while also building up the disproportionately largest gulag in the world. Poll Tax, Grandfather Clause, Understandings Clause, and outright murder were some of the most well known tactics to maintain power, but people should recognize that Louisiana is one of only two states that allow a non-unanimous jury for convictions.
The Fear of a Modern Slave Rebellion
When Albert Woodfox, Herman Wallace, and Robert King were organizing in the early 1970s to ease the oppression of legally enslaved people at the Louisiana State Penitentiary, when they were organizing under the most logical banner of the Black Panthers, their demise was practically assured by history. Surprisingly, they were not outright murdered and joined a long lineage of activists that did not begin with Dr. King, Malcolm X, or Fred Hampton. And just as surprisingly, they survived the initial backlash to a wrongful accusation of killing a prison guard, unlike Emmit Till, Trayvon Martin, Mike Brown, Eric Garner, or Tamir Rice (none of whom were accused of killing a law enforcement officer). Miraculously, they overcame horrid conditions of oppressive incarceration, unlike Sandra Bland, Freddie Gray, and Gynnya McMillen- none of whom, mysteriously, even made it past the police station. It is amazing that they were not gunned down in the prison yard like George Jackson, a Black Panther incarcerated in California, that led to the 1971 Attica Prison Riot in New York.
Every part of the Angola 3 achieving delayed justice, and release, defies gravity in America- especially in Louisiana. The release of Albert Woodfox, following King and Wallace, is a testament to their bond of purpose, their will to persevere, and the growing public intolerance of injustice.
The Right to Defend Against Government Accusations
One can look back at the early 1970’s and reasonably conclude that Woodfox, Wallace, and King never had a chance. What we need to know, however, is would they have a chance today? Woodfox had a second trial, a second one where the state acted so unfairly it was also thrown out by reviewing courts. Today politicians use a budget crisis as a reason to underfund the constitutionally mandated right to counsel, and yet the government is not using that same crisis to close down prison and jail cells.
Those wondering why the ACLU is suing the Orleans Public Defender and the state body that funds the public defenders need to realize it is actually a person denied counsel who is suing. Such a person is the only one with a right to sue, as the right attaches to the person accused of a crime. As it happens, this plaintiff’s claim impacts us all. Will we get a lawyer? Will the 300 people, whose childhood sentences of Life Without Parole were recently thrown out, get lawyers? Would Woodfox have gotten a proper team appointed for a third trial? One way to keep the equation going is to overwork the defense side and continue the conviction system as originally designed. But it is not all static, of course. Slave labor may not be the needed outcome of the equation anymore, as it has some new variables:
(Accusation – Funded Defense Team) +
(Vigorous Police Investigation x Political Ambitious District Attorneys)
Prison Employment +
Contracts for Services (Medical, Food, Telecommunications, Sanitation, Transportation)
+ Incarcerated People Who Are Not “Unemployed”
The public defender has no “right to defend,” thus a demand made upon them, to be passed along to the state budget crunchers, must come from the people with constitutional rights: defendants. While Louisiana struggles with a budget crisis, they can think about the multiple millions of dollars spent trying to maintain the wrongful convictions of the Angola 3 (and many others), and the cellblocks dedicated to wrongful convictions, think of the children sentenced to die in prison, along with Orleans District Attorney Leon Cannizaro and Jefferson Sheriff Newell Normand’s recent comments: about how easing marijuana possession enforcement will basically send New Orleans into a murderous crime spree. Rather than tie marijuana to Doritos, as most Americans do, these out-of-touch elected leaders tie this drug (legalized in several states) to guns.
Marijuana is a “gateway drug,” but not to some realm of intoxicated violence and the bloody business of unregulated commerce. It is a gateway drug to the criminal justice system, where someone gets a “strike” or probation status that forever erodes future constitutional rights.
Peeling Back 150 Years of Construction
Taking a public health approach to the problems our criminal justice system has helped create and exacerbate will not happen overnight. It will come through changes both modest and bold. We need a combination of increased rights, services provided, inspiration, and reducing the punishments. In some cases, punishment needs to be outright eliminated.
Louisiana, Minnesota, and Florida are currently moving towards a citizenship dilemma that will never go away until resolved: When will people living in our communities, on probation or parole, have voting rights- the most basic element of citizenship and democracy. Until this mass of people (over 70,000 in Louisiana) have this tenet of citizenship we will always feel excluded, and be excluded. This exclusion extends to our children, into our friendships, and impacts our workplaces.
Maryland’s legislature recently voted to override their governor’s veto, restoring citizenship to all people who are outside of prison and living in the community. Kentucky, however, has restored then reversed voting rights by executive orders; proving the tenuous nature some view this fundamental cornerstone of democracy.
Those who oppose voting rights don’t believe in democracy.
They are simply un-American.
While very fundamental questions linger about allowing people back into the community from where we come, some make moves on reducing punishments. It is not possible for the 80 million convicted Americans to undergo the brutality, including decades in torturous solitary confinement, suffered by the Angola 3. The taxpayers cannot afford it, the communities cannot absorb it, and the individual families cannot survive it.
President Obama recently eliminated solitary confinement for children in federal custody. Acknowledging that sensory deprivation amounts to torture is a significant moment in mainstream political history, and hopefully our leaders will soon recognize that torture should not be tolerable on our adults. Hopefully state leaders will follow federal leaders, who should be incentivizing such reductions in brutality in the same way federal dollars contributed to the massive spending boom required to build mass incarceration as we know it.
The federal government is close to passing a sentencing reform act that would apply to their federal prisoners. It is important for people to understand that such federal initiatives DO NOT apply to people in state custody, as each state has its own set of independent state laws that are only limited by the U.S. Supreme Court’s interpretation of “cruel and unusual punishment” and protected rights of defendants.
Those who wonder what each of the latest federal bills “will do,” they should be asking the interpretations by impacted people- those who have a stake in the actual success of the litigation beyond claiming victory in its passage. As one would expect, federal legislation often doesn’t begin by asking for too much and typically gets watered down further in the process. If a bill has a modest, but genuine, impact it should be embraced as such rather than over-hyped in a manner that leads people to wash their hands and proclaim a job “well done.”
The federal Fair Sentencing Act will immediately impact some people, and represent a downward trend in sentencing laws, but will not go much further in producing lasting reductions in mass incarceration. Reducing the mandatory minimum on 1kg of heroin / 5kg of cocaine / 280g crack / 50g meth (from ten years to five) will only help the few people who may be serving under ten years for such a major amount of hard drugs. Similarly, the reduction on 100g of heroin / 500g of cocaine / 28g of crack / 100 marijuana plants / 5g of meth (five years minimum to two) will only help those few people where the judge would have given them less.
Doing What You Can, Where You Can
As VOTE’s executive director Norris Henderson always says, “Get in where you fit in.” Some will work on citizenship while others on sentencing. Some gravitate to addiction services and others need to build homes, but ultimately we need to be building our community in ways that involves us all, that puts us all in it to win it, collectively ensuring injustice does not occur.
Welcome home Albert Woodfox.
May you live a long and peaceful life full of all the things you hold dear.
Rest in power, Herman Wallace.
May your spirit guide us along the arc of humanity, the one that bends towards justice.
Keep fighting for justice, Robert King.
May you grow ever stronger through vindication.