How Letting Felons Vote Is Changing Virginia

Under Governor Terry McAuliffe, the state embarked on a campaign to grant clemency more often, and to restore the civil rights of convicted felons.

Cliff Owen / Steve Helber / AP / The Atlantic

Richmond is hot in the summer. August days in Virginia’s capital feature the kind of heat that shimmers in waves from the pavement and even in the evenings plasters suit shirts to skin like wet towels. On one such evening last year, that heat did a little extra sticking, even as a group of people gathered packed in a tiny room behind the governor’s mansion.

In the middle of the group, Governor Terry McAuliffe stood, relishing the attention despite the heat. He’d shown his visitors through the traditional attractions of his home, like the room where the Marquis de Lafayette reportedly lodged during his 1820s tour of the United States. But he reserved the most gusto for the pieces of the mansion and its history that many previous inhabitants had preferred to skip: a thin staircase leading to the warrens and passageways where house slaves were expected to move and work unseen, and the handiworks of generations of enslaved people who’d been shuffled in and out of the house like furniture. The visit to the slave quarters was his pièce de résistance, a heavy dose of symbolism for a program whose beneficiaries he’d invited to dine with him.

McAuliffe’s ten-person audience represented a cross-section of people who’d been granted pardons under the governor’s sharply expanded clemency program. That program is one component of a campaign that his office has embarked on to change a state criminal-justice system rooted in Jim Crow that has disenfranchised and stripped civil rights from people—disproportionately black people—for decades. And while McAuliffe’s term is up in a matter of days, that campaign has already affected the politics of Virginia and the lives of thousands of its citizens, and could someday prove transformative, both for Virginia politics and its criminal-justice system.

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Virginia hasn’t made life easy on people who go through that system. George H. Spicer’s story is a testament to that fact. The 75-year-old journeyman preacher from the Tidewater region considers it his life work to help guide young black men—often his parishioners—who’ve been caught up in that system in their uphill battles to find jobs, to avoid recidivism, and to rejoin society and regain their rights. But, for most of his life, Spicer dealt with his own uphill battle to pursue his own dream in Virginia.

“When I was 17 years old, I got into a little trouble,” he told fellow visitors to the governor’s mansion over dinner. In 1960, still growing up in a Virginia gripped by Jim Crow laws and racial strife, Spicer, said he and his friends got in a fight with a white teenager.

“There was five of us, and I was the youngest of the group,” Spicer continued. He said that he had not thrown a punch, but had still been present when his friends jumped the boy, who sustained some unspecified injuries during the fight.

Spicer was charged along with all of his friends, but was given the choice to accept a felony assault charge—and prison time—or enlist in the Army with a misdemeanor. He accepted the latter, and wound up fighting in Vietnam, later attending seminary, and using his close brush with the law as inspiration to help other black men who’d been less lucky. But over 50 years later, that misdemeanor would come back to haunt him.

“I got to thinking about retirement, and I wanted to go to try and be a substitute teacher,” Spicer said. But when he applied, he was informed that despite his career spent in the community and a resume that would’ve otherwise been accepted, the qualification that his assault charge had been committed “with the intent to maim” could qualify as a “crime of moral turpitude.”

Although since a 2015 state supreme court ruling Virginia has been perhaps the most stringent state on teacher’s qualifications—barring all people with any felonies from working as a teacher in any district—throughout the South’s history, prohibitions against people with crimes of moral turpitude of any degree have gone hand in hand with legalistic efforts to disenfranchise black people and permanently render them second-class citizens. People in Virginia charged with such crimes, even misdemeanors, cannot work as teachers, marriage therapists, real-estate agents, or registered nurses, and may lose or be denied licensure for dozens of other jobs.

Spicer met the governor in 2013 on the campaign trail, when the preacher was the interim pastor at Bethany Baptist Church in Hampton Roads, and when McAuliffe was the Democratic candidate seeking critical support from black communities in the Tidewater. Under its late pastor Jake Manley and then Spicer, Bethany had built its own initiatives to help shepherd black men with felonies back into everyday life, and also to advocate for the restoration of their rights.

Three years after Michelle Alexander’s The New Jim Crow, the policy ramifications of mass incarceration in black communities had become clear, especially at the intersection of old Jim Crow laws and civil-rights abridgements today in places like Virginia. But Democrats—then, as now—have been slow to embrace some more substantive criminal-justice reversals that might meaningfully reduce the rolls of people with felonies, and those who’ve had their rights impaired. People like Spicer at places like Bethany often pleaded for help from state politicians in easing some of the state’s most severe restrictions on people with felonies, to little avail. But during his campaign stop at the church, McAuliffe picked up this thread, promising the beginnings of what became a restoration-of-rights campaign, and also promising to come back to the church as governor.

Four years later, the piece of that campaign that has received the most attention has been the state’s massive push to restore the voting rights for people with felonies. Perhaps unsurprisingly, Virginia has historically been one of the most zealous states in the country in disenfranchising people with felonies, with even those who finish probation having what amounts to a lifelong severance of voting rights unless the governor reviews their case and restores their rights personally.

Also unsurprisingly—like dozens of similar laws in other states—that restriction was created with explicitly racist intent. At the turn of the 20th century, with a white backlash fueling the dominance of a Redeemer government that took power after Reconstruction, white-supremacist politicians began to craft the laws that constituted both the beginnings of a state-codified carceral system, and the bedrock of Jim Crow that was the disenfranchisement of Negroes. To get around the obstacle of the 14th Amendment’s prohibition of explicitly discriminatory laws, the crafters of the state constitution relied on the criminalization of blackness and the penalty of “civil death” as one particularly effective way to ensnare black citizens in the dragnet of disenfranchisement.

“I told the people of my county before they sent me here that I intended,” delegate R.L. Gordon said, “as far as in me lay, to disenfranchise every negro that I could disenfranchise under the Constitution of the United States, and as few white people as possible.”

The resulting web of laws survived over a century, through the civil-rights movement. In Virginia, it survives to this day. Even when McAuliffe issued an executive order in April 2016 declaring that all people with felonies who’d completed parole—some 200,000 persons—would have their rights immediately restored, it didn’t change the underlying laws, and meant that future restorations would still rest solely with the authority and the will of the office of the governor. When Republicans in Virginia’s state legislature revolted at that executive order and won an August 2016 Virginia Supreme Court decision blocking restorations en masse, McAuliffe took another route, with his office reviewing thousands of felons’ records and the governor restoring their rights individually using an autopen. The number of restorations completed that way only stood at 13,000 of the planned 200,000 in August of 2016. But the administration has been persistent, and now Secretary of the Commonwealth Kelly Thomasson tells me 172,298 people have had their rights restored as of Friday, with more on the way in the last week of the governor’s term.

That may represent a small percentage of the state’s 5.5 million registered voters, but it is not a negligible number. Republican David Yancey just won the 94th District of the House of Delegates and extended Republican control of the chamber by a drawing of lots after he tied with Democrat Shelly Simonds at 11,608 votes apiece. Republicans decried McAuliffe’s move as political self-service, and during the 2017 election Republican gubernatorial candidate Ed Gillespie slammed lieutenant governor Ralph Northam, now the governor-elect, in political ads for the “reckless policy” of “automatic restoration of rights for violent felons and sex offenders, making it easier for them to obtain firearms and allowing them to serve on juries.”

McAuliffe has preferred to downplay the political ramifications of the move. When we spoke in May of 2016, he said that it was up to parties to gain the allegiance of new voters. “I tell the Republicans, ‘Why don’t you go out and earn these folks’ votes?,’” he said. McAuliffe focused on the social-justice ramifications of the move, telling me that “the whole genesis of what we’re talking about here today goes to the core of racism in this country.”

Still, the social and political motives and outcomes of moves like McAuliffe’s cannot be so easily separated. In Virginia, somewhere over 40,000 of the newly enfranchised citizens registered to vote. If they voted in the 2017 gubernatorial and state legislative races at comparable rates to the population, that would add 19,000 new voters, or somewhere just under 1 percent of the electorate. A 2016 study by the governor’s office showed that 46 percent of all of the newly restored citizens were black. If that demographic breakdown was still true in November 2017, it would have meant that somewhere around 9,000 new black voters voted—and virtually all black voters in the state cast their ballots for Northam. That’s a small number, but it’s again a non-negligible percentage (2 percent) of the strong black turnout of over 500,000 voters.

But those percentages are only part of the electoral equation. It’s possible—probable, even—that such a massive undertaking on behalf of a population heavily skewed toward African Americans motivated family members, friends, and communities of newly-restored people to vote, and also energized black voters in a post-Charlottesville contest in which racism became the key issue. Efforts at mobilization, linked to infrastructure created to get black people with felonies into the restoration process, injected energy into majority-black neighborhoods. In a purple state where politicians already jockey for the any marginal advantages via gerrymandering and voting-rights restrictions, changes don’t have to be large in order to be meaningful.

Those lessons carry weight beyond Virginia’s borders, as well. In Alabama, surprisingly strong black turnout buoyed Democrat Doug Jones to a victory over Republican Roy Moore in a dramatic special election for the state’s open Senate seat. When I talked to black organizers in the state—which disenfranchised as much as 16 percent of black voters by way of felony restrictions in 2016—they pointed both to a change in state law eliminating some of the weight of its “moral turpitude” restrictions and to increased attention to registering people in jail and people with felony convictions as key factors in their victory. (It is legal for people without felony convictions to vote in jails in Alabama.) More broadly, the Sentencing Project estimates that 1 in 13 black people in America was barred from voting by felony disenfranchisement in 2016, as compared to 1 in 56 non-black people. Although states like Virginia, Alabama, Iowa, Florida, and Kentucky have increased restorations in recent years, there are still millions of potential voters and communities that can be activated by simple policy changes. Perhaps that’s why those changes are so rarely made.

Even so, the political calculus doesn’t come close to addressing the real meaning of rights-restoration and clemency for the people who receive such reprieves, and for their families. Long excluded by and alienated from the political community, they feel a restored sense of faith. When I talked to activist Karen Fountain, who helped register newly-restored people with felonies with the New Virginia Majority group, she told me that the single decision had exhilarated hundreds of people and given them a sense of belonging and hope. “The majority tell me they’ll be voting from here on out,” Fountain told me of her newly enfranchised charges. “All of them—it’s been so many years that they’ve not been able to do that. It’s their voice—they have a voice. When they make that check, they have a voice.”

The newly restored voters agree. Virginia now hosts a website that features dozens of testimonials of newly-enfranchised voters. One voter, Lynette, said “I feel like I can finally live as a whole citizen,” since her restoration in October 2016. Another, Licia, said that “this opportunity has given me the strength to no longer look at myself as a second-class person, but an upstanding citizen, leader, and community advocate.”

For those who have yet to be restored, perhaps the best news is that Virginia’s experiment, although not codified in law and still subject to executive authority, will likely continue at least through the next term. Thomasson, the state official overseeing clemency and restorations, is staying on. “Governor-elect Ralph Northam has said every time he’s had the opportunity to say it that he’s proud of the work that we’ve done and wants to continue it,” he said.

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The outgoing governor and his administration don’t necessarily see their clemency campaign and restorations of rights campaign as part of the same project. According to Thomasson, although McAuliffe has issued 201 pardons, what might stand as the most pardons of any governor in Virginia history, the two fronts—one of which involves restoring civic life to people who’ve largely done their time, and the other which means actually forgiving people for perhaps even violent crimes—are different both optically and procedurally. “From a process standpoint, they’re very different,” Thomasson told me. “From a standpoint of believing in second chances, they’re very similar.”

Even in what amounts to a radical scheme under McAuliffe, it’s much more politically feasible to offer blanket restorations of voting rights to felons who’ve completed their time than it is to give blanket pardons. And in both cases, the programs carve out the so-called hardened criminals, the recidivists, those still undergoing probation and parole, and those still serving time.

But in both cases, McAuliffe has employed the rhetoric of second chances, and has stated that racial disparities in who gets those chances among his major motivations. In his opening presentation to the guests at his August dinner, McAuliffe said that “for me, it’s pretty simple. I think everybody deserves second chances in life.” In response to Spicer’s life story, the governor responded that “any of us, at 17, we could've had a mistake here or there. I'm not kidding. When I grew up I had one serious fistfight a week. I was notorious.”

"They called me ‘Mad Dog McAuliffe,’” he added.

Although the administration’s officials took great pains to preserve the optics of that dinner and its clemency campaign—again, clemency is an even more volatile political issue than restorations—the very stories of the people before them suggested that in efforts to challenge a criminal-justice system quickened in the belly of Jim Crow, the “redeemable” and the “irredeemable” can’t be so easily separated at first glance.

Perhaps the most complicated case that came before the governor’s desk was that of Robert Paul Davis, who in 2003 confessed to a double murder, and was sentenced to 23 years in prison when he was only 18. In 2011, one of the other two suspects implicated in the murders signed an affidavit admitting he’d thrown Davis’s name out to deflect suspicion, and that police had extracted a confession from the 18-year-old under intense pressure. Davis, who is white, attracted the attention of the Innocence Project, and his confession became the subject of a Dateline NBC episode. But when he petitioned then-Governor Bob McDonnell, a Republican, in 2012 for clemency, the governor denied his application.

Then, in December 2015, he received a call to the warden’s office, one that he believed to be news about his ailing mother. “My lawyer said ‘You might want to hurry up, before the governor changes his mind,’” Davis said. “So, I started walking faster. And I was told that I would be given a conditional pardon.”

Now 31, after serving 13 years of his sentence in a prison that wouldn’t teach trades, instruct in basic adult living skills, or give inmates a college education, Davis is reintegrating into his native Charlottesville, where since receiving an absolute pardon he’s been able to find and hold a number of jobs, and has built a new life with his girlfriend and her daughter. “I work four jobs now,” he told me. “I can check ‘no’ on job applications when asked about felonies.” Although it’s still tough for him to afford insurance and manage certain elements of life as a free man, like budgeting, he’s now often seen in the streets of Charlottesville, leveraging his tight-end’s frame as a security guard.

At the governor’s mansion, Davis proudly announced that he’d worked 20 hours over the weekend, and that he’d worked nonstop in the week before. He’d just secured a job in private security, and his first assignment with that job had been securing perimeters protecting the funeral of Heather Heyer, the Charlottesville counter-protester who’d been killed a week earlier amid now-infamous violent rallies held by white supremacists.

“Here’s what second chances get you,” he told the governor.