The differences between jail and prison and between probation and parole are the key factors in a December, 2006, California appeals court ruling that restores the voting rights of as many as 100,000 people in county jails on probation.
Prison is an institution run by the Department of Corrections, while jail is run by the county sheriff. Likewise, parole is a state-imposed order, with parolees under the supervision of the Department of Corrections; probation is a county-imposed order, with probationers under the supervision of the Superior Court.
The appeals court has ruled that any person who is not either in a state prison or on parole following a state prison commitment has the right to vote. A person serving time in a county jail as a condition of probation is once again eligible to vote.
In 2005, Secretary of State Bruce McPherson instructed county elections officials to reject the registrations of those people in jail on felony probation, disenfranchising the 100,000 people whose voting rights have now been restored.
McPherson's instructions were based on Attorney General Bill Lockyer's re-interpretation of a provision in the California Constitution that denies the right to vote to persons "imprisoned or on parole for conviction of a felony." Since the adoption of this language in 1974, it had been consistently held that those persons in prison or on parole were ineligible to vote, while those who had, whether by plea or following trial, been found to have committed a felony, but who were than placed on probation, rather than being sent to state prison, had the right to vote, even when serving a term in county jail of up to one year.
The American Civil Liberties Union sued on behalf of The League of Women Voters and individuals who had been disenfranchised by Lockyer's opinion, filing a petition to restore probationers' voting rights. The appeals court agreed, pointing out that the Attorney General opinion had focused on a narrow dictionary definition of the word "imprisoned," and had ignored decades of legal distinction in criminal and elections law, between probationers and those sentenced to prison or on parole following a prison sentence.
Maya Harris, executive director of the ACLU, said most of those affected by the decision are racial or ethnic minorities, young men who have committed non-violent crimes. According to Harris, probation officers believe that restoring the right to vote helps in inmates' rehabilitation.
Bob Evans, an attorney at law in Oakland, is a member of the Peace and Freedom Party's California State Central Committee.