Laymen often use the terms “parole” and “probation” interchangeably because they both refer to folks who were convicted of crimes but are not incarcerated. Alameda County Superior Court Judge Evelio Grillo thinks California Secretary of State Debra Bowen should not.

On Wednesday, the judge ruled that Bowen erred in 2011 when she disenfranchised tens of thousands of felons who were reclassified by California's new prison realignment as being on probation from the county, not parole from the state system. She said at the time that their status does not change “just because the mandatory supervision that is a condition of their release from prison is labeled something other than ‘parole.’ ”   

Bowen said their status was the same. Probation was the functional equivalent of parole. The judge disagreed. 

Judge Grillo acknowledged that neither the state Penal Code nor the Realignment Act defines “parole.” He also pointed out that dictionaries often conflate “parole” and “pardon,” and the courts “have accorded great similarity to the words.” 

Nonetheless, he rattled off nine reasons why a deeper reading of things like legislative intent and the realignment statute as a whole indicated, in this case, there was a difference between the two terms. While noting some arguable points of law, Grillo said he was also swayed by the importance of casting a ballot. “California law requires this court to give every reasonable presumption in favor of the right of people to vote,” he wrote. 

Each state has its own laws governing whether convicted felons are allowed to vote in elections. In California, they cannot vote while still in prison or on parole. It's been that way since voters amended the state Constitution in 1974 to lift a lifetime ban on all convicted felons.

But low-level felons were shifted to county jails and county probation systems as part of the state's realignment to meet federal court orders that it reduce the prison population. The federal government has been in charge of California prison healthcare since 2005 and overcrowding since 2009. The takeover followed years of prison horror stories, frequent inmate deaths, severe overcrowding, deficient health care, defiant mismanagement and, in the end, lawsuits.

The lawsuit was filed by the American Civil Liberties Union of Northern California on behalf of three former inmates, the League of Women Voters and the inmate-advocacy group All of Us or None. It alluded to “bureaucratic tyranny” and alleged that Bowen violated the California Administrative Procedure Act (APA) by sending out a 2011 memo to county election supervisors without notifying the public and gathering their comments. “This is precisely the type of unilateral rulemaking the APA is designed to prevent,” the suit argued. 

The judge's ruling comes too late to help felons on probation who want to vote in the November election. He won't be holding hearings until June to come up with a remedy for the disenfranchisement.  There is also the possibility of an appeal.

–Ken Broder

To Learn More:

Judge Says State Illegally Denied Voting Rights to Thousands (by Henry K. Lee, San Francisco Chronicle)

Judge Says Ex-Cons Under Supervision Have the Right to Vote (by Paige St. John, Los Angeles Times)

Judge Orders Restoration of Voting Rights for Tens of Thousands of Californians (American Civil Liberties Union)

Lawsuit Claims Secretary of State Bowen Disenfranchised 58,000 Ex-Prisoners (by Ken Broder, AllGov California)

Michael Scott et al v. Debra Bowen, Secretary of State (Alameda County Superior Court) (pdf)