ST. PAUL — Four Minnesotans on probation this week sued the state, arguing it was unconstitutional to deprive them of their right to vote during the years — and for some decades — that they'll be on probation or supervision after a felony.
The move comes after the state Legislature this year opted not to restore the right to vote to felons who aren't sentenced to jail time or who have completed their prison sentence. And it puts the decision to the courts.
Attorneys with the American Civil Liberties Union, which brought the lawsuit on behalf of the four ex-offenders, said there’s no clear legislative reason for that prohibition and highlighted the discrepancies in probation sentences, which can range from an average of three years in Hennepin County to seven years in the 7th Judicial District, a swath of the west-central region of the state.
The lawsuit rekindled conversations at the Capitol about re-enfranchising felons once they've completed their sentences. And while it appeared unlikely that the measure would gain new traction in 2020, lawmakers in the divided Statehouse said they were ready to explore an alternative: setting clearer parameters for probation sentences.
It's not exactly what the four asked for, but the change could get ex-offenders earlier access to the ballot if lawmakers approve the plan in 2020.
To cap, or not to cap?
Minnesota has had clear prison sentencing guidelines for decades. But those guidelines don’t extend to probation and supervision sentencing, resulting in different probation lengths across the state.
"It really is the Wild West," said Rob Stewart, the research director for the Minnesota Justice Research Center, a nonpartisan group that researches criminal justice issues.
Stewart said there’s no benefit to having probation terms stretch into the decades. If an offender does not re-offend within seven years of their first offense, he said, the likelihood of them committing another crime later is about equal to someone who has never committed a crime.
“What I can tell you for sure is that there is absolutely no empirical evidence that long probation sentences have any measurable or useful impact on crime rates or public safety,” Stewart said. “The question for us is, could these resources be better spent on people that really need it?”
An effort to cap probation sentences at five years except in cases of murder or criminal sexual conduct came up short this year despite bipartisan support at the Capitol. But key lawmakers and the governor said the issue could fare better in 2020, now that lawmakers have finished a two-year budget.
“When it comes to probation, I think there is a lack of uniformity and that is something we should look at,” state Sen. Warren Limmer, R-Maple Grove, said. Limmer is a key gatekeeper in the Senate as he chairs the Judiciary and Public Safety Committee and determines which proposals get a hearing.
Re-enfranchising felons on probation
Attorneys working with the ACLU on Monday, Oct. 21, sought to nullify the law barring felons from having voting rights restored once they leave prison. And they said they were hopeful their efforts could light a fire under lawmakers to pass the proposal in 2020.
“We’re intending to restore the right to vote one way or another. The Legislature has thus far failed to correct the injustice of denying those in the community the right to vote and that’s where we step in,” Craig Coleman, a pro bono attorney on the case said. “If the Legislature takes this occasion to fix the problem, that would be welcome, but if they don’t, that’s the role of courts and we believe we’d prevail.”
Because of racial disparities in Minnesota's criminal justice system, Stewart, with the Justice Research Center, said restoring voting rights to those under probation could help address disproportionate rates of disenfranchisement across racial groups.
According to research from the MNJRC, Native Americans are disenfranchised at the highest rate in Minnesota at 9.2%. Second are black Minnesotans, 5.9% of whom cannot vote. By comparison, only 1.1% of white Minnesota adults are disenfranchised.
Stewart said re-enfranchising Minnesotans on probation wouldn't completely eradicate racial disparities in disenfranchisement, but it would be a start. The percentage of disenfranchised Native American Minnesotans would drop to 2%, and for Black Minnesotans, 1.5%. For white Minnesotans, the number would drop to 0.1%.
Limmer isn't sold on the idea.
“When it comes to allowing felons to vote, I’m not convinced that’s a good direction for the state,” he said.
Limmer said a better plan to restore voting rights sooner would be to cut down or even out probation and supervision sentences. Corrections Commissioner Paul Schnell said he supports efforts to cap probation sentences and said the Minnesota Sentencing Guidelines Commission is also considering a probation sentencing grid to allow for more uniform probation sentencing around the state.
“There isn’t clear standard,” Schnell said. “We think it’s really critical that we make some changes and cap probation for the certain offenses that were identified. It’s grounded in good research and, fundamentally, it’s fair.”
State Sen. Roger Chamberlain, R-Lino Lakes, and Rep. Jamie Long, DFL-Minneapolis, carried the proposal to cap probation sentences at five years for nonviolent offenders. And both said they’d bring the measure up again in 2020.
“I think people are realizing that our state is really out of step nationwide in terms of the length of our probation terms and we have to have a lot more fairness for our folks who have already served their time in prison and are getting back on their feet,” Long said. “We don’t need them to be on probation for 30, 40 years.”
And if felons are unable to vote during those decades under supervision, Stewart said they can develop feelings of helplessness or apathy, or resentment toward the state. Over generations, he said it "reduces the voice" of communities most impacted by the criminal justice system: low-income and minority.
Gov. Tim Walz, a supporter of the effort to restore the vote to felons, said he was open to the courts taking on the case and hoped to have a broader discussion about criminal justice reform in 2020.
“I want to see probation reform, I want to see parole reform, I want to see pardon reform," Walz said. "I do think that right, to restore that vote, is an important one."
Elizer Davis, one of the four plaintiffs named in the lawsuit, served 17 years in prison for a 2nd Degree homicide. But due to his supervision status, he will not be eligible to vote again until 2025.
"Everybody deserves a real second chance," Darris told reporters on Monday. “The number of people barred from voting is appalling. It’s appalling, and we must do better."