JUN SEP Oct 8 2012 2015 2016 9 captures 12 Mar 05 - 8 Sep 15

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New Jersey is home to some 80,000 citizens - the majority of them black or Latino - who live and work among us but cannot vote. They are on parole or probation as a result of conviction of an indictable offense.

Their disfranchisement is dictated by N.J.S.A. 19:4-1, adopted pursuant to Article 2, Section VII of the state constitution, which provides that "the legislature may pass laws to deprive persons of the right of suffrage who may be convicted of such crimes as it may designate."

A suit pending in Union County's Chancery Division, (New Jersey State Conference, NAACP v. Peter Harvey, Attorney General of New Jersey), challenges the statute as a denial of equal protection of the laws to the state's racial minority community which the constitution may not authorize. The case is brought pursuant to the New Jersey, not the federal, constitution.

The challenge is based on the grossly disparate impact of the law on the state's minority population, which constitutes more than 60 percent of the disenfranchised, even though they represent only about 27 percent of the state's population.

If the disparity were, in fact, merely the consequence of the neutral application of the criminal laws, it would be lamentable but probably constitutionally acceptable. But that is not the case. The fact is, because of the discriminatory operation of the criminal justice system itself, blacks and Latinos are investigated, arrested, prosecuted and convicted (and, consequently, disfranchised) at rates substantially disproportionate to their propensity to commit crimes. It is that fact at the heart of the lawsuit.

The discriminatory application of criminal law in New Jersey as a result of racial profiling is well-documented and has been acknowledged by all branches of state government. In State v. Soto, 324 N. J. Super. 66, a Superior Court judge in Gloucester County found that defendants have proven at least a de facto policy on the part of the State Police from the Moorestown station of targeting blacks for investigation and arrest.

"The statistical disparities and standard deviations are stark indeed. The utter failure of the State Police hierarchy to monitor and control a crackdown program like DITU or investigate the many claims of institutional discrimination manifests its indifference if not acceptance."

Data cited by the court showed, for example, that the rate of tickets issued to black motorists as a result of discretionary stops was more than double those of radar-based stops. In other words, when police were allowed to pick their targets, it was minority voters more likely to be focused on compared with stops based on racially neutral criteria.

The findings of the Soto court were acknowledged and expanded upon by the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling issued by then-Attorney General Peter Verniero in 1999. That report found that "the underlying conditions that foster disparate treatment of minorities have existed for decades in New Jersey ... and will not be changed overnight."

The Verniero report continued: "Despite efforts and official policies to address the issues of racial profiling, based upon the information that we reviewed, minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the New Jersey Turnpike." He noted that eight of every 10 searches conducted by troopers assigned to the Moorestown and Cranbury stations involved minority motorists.

From 1996 to 1998, troopers from the Moorestown, Cranbury and Newark stations made a total 2,871 arrests for "serious offenses." Of those, 62.7 percent involved black suspects. Significantly, Attorney General Verniero's report affirmed: "The fact that arrest rates for whites was comparatively low does not mean that white motorists are less likely to be transporting drugs, but that they were less likely to be suspected of being drug traffickers in the first place and thus less likely to be subjected to probing investigative tactics designed to confirm suspicions of criminal activity, such as being asked to consent to a search."

That the profiling practice continued into the 21st century despite efforts to eliminate it was confirmed by the testimony of Attorney General John Farmer before the Senate Judiciary Committee in April 2001. He reported that a study of Troop D in early 2001 showed that blacks were subject to 53 percent of the consent searches, Hispanics to 25 percent and non-Hispanic whites to only 19 percent. "Thus, blacks and Hispanics were subjected to consent searches at rates higher than their presence on the road and higher than their stop rates."

Further exacerbating the impact of felony disfranchisement on the minority community has been the so-called "War on Drugs." Drug arrests are uniquely the result of targeted police activity. Unlike robbery, homicide or other victim- specific crimes, drug arrests are, more often than not, the consequence of discretionary police investigations.

The racial impact of the war on drugs is startling. In 1982, 12 percent of the state's prison population were drug offenders and 31 percent were white. In 2001, 34 percent of the state's prison population were drug offenders and only 18 percent was white.

The New Jersey Department of Corrections has attributed this change to the targeting of inner-city neighborhoods under the Comprehensive Drug Reform Act of 1986. Between 1986 and 1999, the rate at which blacks were incarcerated for drug offenses increased by 475 percent, while whites imprisoned for the such offenses increased by 112 percent.

Yet, national and New Jersey research studies indicate that whites and blacks use illegal drugs at relatively similar rates. Admittedly, these studies involve self-reporting; but there is no data to indicate that one racial group under-reports such use more than another.

Felon disfranchisement thus perpetuates and compounds the harm caused by discrimination in the New Jersey criminal justice system. That's why NAACP v. Harvey alleges that the disadvantage suffered by the black and Hispanic communities from felony disfranchisement is the fruit of governmental toleration, if not encouragement, of discrimination and thus bears a heavier burden of justification than a law that only incidentally disadvantages racial minorities.

The case is brought not only on behalf of parolees and probationers who are being denied the right to vote, but also on behalf of the entire black and Hispanic population of New Jersey for dilution of their vote and their ability to influence the political process.

The plaintiffs include not only the NAACP State Conference, but also the Latino Leadership Alliance of New Jersey and two members of the Elizabeth City Council - one black and one a Hispanic who assert an interest in increasing minority voting power.

The community of interest between New Jersey's black and Hispanic communities has already been recognized by one federal court. In the legislative redistricting case, Page v. Bartels, the three-judge court held "the African- American and Hispanic communities in New Jersey often vote as a bloc, a fact which may be considered in assessing the ability of either community to elect candidates of its choice."

It does not take much imagination to recognize that the disfranchisement of 50,000 minority voters could make a significant difference to the outcome of close elections, such as the gubernatorial election of 1993 when Christie Whitman defeated Jim Florio by less than 2,000 votes - or in a county like Essex where, in 1993, there were 9,703 blacks and 1,719 Hispanics on parole or probation.

It was in Essex in 1994 that Cardell Cooper, a black candidate, lost to a white candidate James Treffinger, by only 2,161 votes for county executive. Whether these voters could actually change the outcome of any specific election, there can be no argument that the removal of so many members from this bloc of minority voters recognized in the Page case dilutes the overall political power of the minority community in New Jersey.

Apart from the impact on minority citizens and their communities, there is a significant question as to the public policy behind disfranchisement of parolees and probationers. The high court of Canada and more recently the high court of South Africa have ruled there is no justification for denying the vote even to incarcerated felons.

Two states, Maine and Vermont, permit incarcerated persons to vote. As to persons no longer incarcerated, public policy clearly points in the direction of restoration of voting rights.

New Jersey law is clear: To deny a fundamental right (such as voting) to a protected class (racial minorities), the state bears a very heavy burden of demonstrating a compelling state interest. The only real interest the state can presumably assert is one of punishment. However, punishment is no longer a relevant government interest when applied to persons on parole and probation. As the New Jersey Supreme Court declared in 1982, "inmates will have presumably satisfied all punitive aspects of their sentences when they become eligible for parole."

Indeed, the policy clearly articulated by courts and the legislature - and echoed by criminologists - is one of rehabilitation of ex-offenders and re- entry into civic life. This was the policy adopted by the House of Delegates of the American Bar Association at last year's annual meeting. ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons stated that "jurisdictions should not impose deprivation of the right to vote, except during actual confinement."

In its report, the ABA's Criminal Justice Standards Committee explained that "the criminal justice system aims at avoiding recidivism and promoting rehabilitation," while "collateral sanctions may perpetuate an offender's alienation from the community." It concluded that "collateral sanctions depriving individuals of certain civil, judicial and domestic rights should never be categorically imposed."

Thus may we conclude that not only does New Jersey's disfranchisement law undermine the voting rights of minority citizens, it is contrary to public policy. Felon disfranchisement laws constitute one of the last bastions of race discrimination in this country. It is no surprise that these laws have their roots in the Jim Crow tradition that produced poll taxes, literacy tests and other racially biased schemes for diluting black voting power.

In the southern United States, felon disfranchisement remains a primary weapon against black political power. There can be no real debate that the crucial Florida electoral votes that put George W. Bush in the White House resulted from the lifetime disfranchisement of black ex-felons.

While New Jersey is not among the seven states (mostly in the South) that have a virtual lifetime voting ban on ex-felons, it nevertheless has one of the more restrictive felon disfranchisement laws. Sixteen states and the District of Columbia restore voting rights to all felons once released from incarceration. Four others allow only probationers to vote.