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Finally! Felony Disenfranchisement

jail1A tremendous body of advocacy writing concerning felony disenfranchisement spends its time comparing us to European countries and waxing long on our failure to be like them… Screw that, let’s be like us, and if we want to change the way we do business let’s keep it internally consistent! Let’s do it because it’s the right thing to do, not because somebody else is doing it. Sheesh!!

That’s the second to last paragraph of last week’s post. Just a reminder of where I’d prefer decisions about our political and legal life to be, rooted in our country’s history – socially, politically, and especially legally. I don’t really think I trust any lawyers when it comes to arguments; they strike me as waaaay too much like the sophists. It really isn’t about finding the truth of the matter; it’s all about winning the argument… even if the winning argument ignores evidence that might be deemed “exculpatory.” If the opposition fails to find the exculpatory evidence, then really, “it simply isn’t my concern.” Don’t get me wrong here; I’m certain there are honest lawyers out there somewhere – just like there are honest politicians. Simon Cameron said it best, “An honest politician is one who, when he is bought, will stay bought.”

Unfortunately, most of the advocacy writing on this subject (felony disenfranchisement), and the associated “research,” is done by lawyers or think tanks aimed at a specific agenda. Apart from many lawyers associations, especially the American Trial Lawyers Association (an exclusive group of “the best” 100 lawyers from each state that caters only to the defense side of a trial) and the ACLU, there are also other groups like The Sentencing Project that one might think are more balanced. Again, unfortunately, the aim of The Sentencing Project is focused sharply on defense attorneys. Moreover, the lion’s share of the material tries to invoke international law, U.N. Treaties, or the practices of other nations. When it is not trying to do that, the authors use descriptive statistical information precisely as one might expect of a lawyer rather than a statistician or scientist. In other words, one finds lawyers repeatedly trying to use descriptive statistics to prove discriminatory practices. This tool describes a population, it doesn’t prove or explain anything – other than the description.

Before I actually give my position, I’d like to lay out just one more example of the kinds of arguments and commentary coming from this rather one sided group of defense attorneys – primarily because it’s just a little funny. It’s worth a direct quote from the Alabama Law Review, Vol. 58:

Though felony disenfranchisement has been present in this country since its inception, the outrage over this process has gained serious momentum in recent years. The reason for this new found interest in felony disenfranchisement laws can be traced to the 2000 presidential election.1 This presidential election was the closest in the history of the United States2 and resulted in President George W. Bush winning the election while losing the popular vote.3 In fact, the election was so close that the result hinged on one state: Florida.4 The Republican nominee, George W. Bush, won the state of Florida by accumulating fewer than 1,000 more votes than the Democratic nominee Al Gore.5 In such a closely contested election, some commentators believe that if felons were allowed to vote, Al Gore would have become the forty-third President of the United States.6 (emphasis mine)

Come on, seriously, if criminals could register to vote, then they’d certainly register as democrats… That’s directly from the opening paragraph. What happened to the proof reader? You might expect me to make mistakes like that; I don’t have an editorial staff to make sure I don’t walk away with my foot in my mouth. But you don’t really expect that from an established journal. Regardless, the article is one of the few I really enjoyed because it focused on American Law, why it probably would not be practical to challenge disenfranchisement laws through the courts, and finally, why concerned citizens must move their legislators to change the laws.

I happen to agree that these laws need to be changed, but not for the reasons typically offered by lawyers concerning things outside the internal consistency of our own laws and intentions. Leave it to a Canadian, specifically members of their Supreme Court, to avoid an argument based on international law and to focus on the internal consistency of the thing itself! From a paper by The Sentencing Project on page 29:

The court concluded that the policy [of disenfranchisement] did not communicate a clear lesson to the nation’s citizens about respect for the rule of law. The court stated: “Denying a citizen the right to vote denies the basis of democratic legitimacy. It says that delegates elected by the citizens can then bar those very citizens, or a portion of them, from participating in future elections. But if we accept that governmental power in a democracy flows from the citizens, it is difficult to see how that power can legitimately be used to disenfranchise the very citizens from whom the government’s power flows.”

That’s an argument that should resonate with many Americans familiar with the American State Papers, i.e., our Constitution, Declaration, Bill of Rights, and the Federalist Papers. Here in Oregon, felons are disenfranchised during their incarceration and are automatically enfranchised upon release. If there is to be any disenfranchisement at all, then surely after the debt is paid the most important right of a citizen should be restored – especially if we are serious about wanting this member of our society to exercise the duties and responsibilities of a citizen.

countyjailI’m not so bold as to say all felons are democrats… because I know a few Independents that are ex-cons. Ha, you thought I was going to say republicans – all republicans are felons. Hahahaha. Seriously though, what do you think? Considering we have over 5,000,000 people unable to vote, doesn’t that have a pretty large impact on our notions of democracy – let alone the functioning of our democracy? What do you think?

Cheers all! And as me Da says: “Polite? Yes. Politically correct? Don’t hold your breath.”

  1. Jeff
    December 11th, 2009 at 10:56 | #1

    I’m very tempted to say that if a released felon is going to vote Democrat, keep him disenfranchised. I can’t say I have an iron clad opinion on this one way or the other. What I can say is this – Assuming the fellow commiting the crime was consciencious enough to be an informed voter, he likely knew he was putting his voting rights in jeopardy. He risked them. He lost them. It’s part of the price. I realize this may be considered circular logic, but I really see it as more of a consequence for an action.

    However, there is the case of the person who was not the consciencious voter who commited a crime and found enlightenment behind bars (I mean, I’ve seen it in movies so it HAS to be true, right?). He dedicated himself to becoming a better person and deserves a second chance because he just didn’t know any better (I threw up a little in my mouth typing that). So what do we do with this imagined person? I don’t know. How about – you stay clean for 5 years, you can vote again? The length of time left to be dependent upon the gravity of the crime? These are just initial thoughts, I admit, but they seem reasonable to me.

    Now as to the question of whether there should be disenfranchisement in the first place… again I give you the utterly decisive: it depends. Some states have absolutely stupid crimes listed as felonies. A guy with a bag of weed probably should be able to vote when he gets out. A guy who rapes and kills a kid but gets a reduced sentence due to mental issues shouldn’t.

    I’ll think about this today at work, read whatever response you have to the comment, and probably post a little more. It’s an interesting question and one I don’t get a good feeling over when I come up with my answers. Thanks for the thinking-prompt…

  2. December 11th, 2009 at 23:48 | #2

    @Jeff

    Of all places, I learned about felony disenfranchisement in seminary. It came as part of the history of the Greek and Roman Empires and their notions of “civil death” as punishment. It gradually evolved into the English and German/Nordic/Viking versions. The English came up with its version in the form of “attainder” and the Germanic version was “outlawry.” While these were obviously more severe than our current version, the idea was similar – “you’ve violated the community trust, you therefore forfeit your “civil rights” as a member of this community.” In small communities the humiliation and stigma were quite powerful. These ideas were “modernized with compassion” so only the vote and right to arms were lost.

    It varies from state to state, but generally, two states don’t have any form of disenfranchisement, including the period of incarceration, two have life time disenfranchisement, and the rest fall somewhere in between. Some, like Oregon, restore the right to vote (not the right to bear arms, though that can be “earned”) upon release from prison. Some have a system very like what you suggested; the felon must be off both probation and parole, and there are some with waiting periods before the felon can petition the government for his franchise.

    I tend to agree with Oregon’s format, lose it while imprisoned, and regain it upon release. I too see the loss of voting rights as the consequence for an action; however, since it is in fact a part of the punishment, I believe the felon should be advised of its loss and the means to regain it upon conviction. I think it should more or less be part of the “conditions of confinement, parole (or post-prison supervision), and release.”

    Now me, I’m very tempted to say that if a released felon is not something other than a Democrat or Republican – “No vote for you!” …the franchise Nazi ala Seinfeld. My problem is very similar to yours; I don’t feel good over some of the answers I find for myself.

    The legal articles and Sentencing Project articles like to mislead with a statistic by saying something like, “an overwhelming majority of Americans disagree with felony disenfranchisement.” I hate this kind of disingenuousness! Over 80 percent of Americans felt the right to vote should be restored to convicted felons at some point – this according to Brian Pinaire, Milton Heumann & Laura Bilotta, Barred from the Vote: Public Attitudes. Toward the Disenfranchisement of Felons, 30 FORDHAM URB. L.J. 1519, 1540 (2003).

    I believe any crime associated with treason, armed insurrection, etc. should lose the franchise permanently or for some extended period of time. Any crimes that interfere with the functioning of the body politic would be candidates for “civil death.” This would include such crimes as were considered “capital offenses” back in the day… rape, murder, kidnapping, etc. Those are just preliminary thoughts after a little reading and contemplating – it was a lot tougher than I had imagined. Given my temper and notions of honor as a young man, I could very well have been one of these felons… I had a better choice, and chose the military service. I guess it’s much harder to think clearly when you’re considering what is or is not a just punishment for yourself. I’m still thinking about it, and it’s very much open to debate.

    Thanks very much for the thoughtful input!

  3. John
    December 12th, 2009 at 11:02 | #3

    Have there been any studies on whether the disenfranchised felons actually participated in the voting process before they became felons? I would guess that the percentage that voted would be low, so is taking away their right to vote affecting anything, like the outcome of an election?

  4. Jeff
    December 12th, 2009 at 22:43 | #4

    @The Skald
    I read that paper you referenced because I had a really hard time believing the 80% figure and I’m generally skeptical of poll findings (I called 10 people in south central LA and asked if weed should be legalized – 100% of Americans said yes!). I see that depending on the characteristics of the felon the numbers varied widely. When I saw 52% of respondents were in favor of restoration to sex offenders, well, I’m either completely out of touch with my countrymen or there’s something up with the study. Then I read the precise questions asked:

    “Now how about people who have been convicted of a crime and served their entire sentence, and are now living in the community. Do you think they should have the right to vote?”

    With the question phrased that way, I don’t think of killers, rapists, and thieves. I think of someone with an assault charge who turned it around.

    What’s a bit loony, in my opinion, is that while 80% said ok for felons who served their time, only 68% said ok for ‘people convicted of a crime who are sentenced to probation.’ So 12% more people were likely to restore the voting rights of a person who’s crime was severe enough for prison than were likely to give it to a probationer?! Wha?!

    52% believe sex offenders should get their voting rights back. 63% for white collar crimes. And 66% for violent offenders. Guess there’s not much difference in public opinion between slipping some cash in your pocket while working at the bank and stabbing an icepick in the face of a woman as far as the US public goes…

    I don’t know whether I should be disappointed in my ‘peers’ or if I should be paranoid about the study’s data.

  5. December 13th, 2009 at 13:00 | #5

    Hi @John

    While I was researching this topic I did find a few mentions of your question. Although I didn’t pursue any specific studies, several of the ones I was actually perusing mentioned in passing that the answer was directly proportional to education completed and socioeconomic levels. I guess that’s not much of a surprise, and neither is the fact that the lion’s share of inmates rarely enter prison with much more than a high school diploma… if that. However, of the small percentage that enters prison having used the franchise – virtually all want it back.

    I think your question is directed more toward the majority who failed to use it prior to prison, do not recidivate, and are seeking the vote after prison. The recidivism rate in Oregon is just under 30% and the 70% who maintain a clean record are automatically re-enfranchised – as a consequence there isn’t much research on felons voting habits post prison. However, exit preparation of inmates about to parole/depart indicate that as many as 60% have a new interest in the political process and a desire to participate. How many actually do? I don’t know the answer to that – but it is a question worth answering.

    On the other hand, I’m mostly thinking of it in terms of having the right restored – just as an ordinary Joe (or Jane) Citizen on the street would find himself – eligible to register, but that’s up to the individual. Thanks for the question – it raised a few more to think about 😀

  6. December 13th, 2009 at 13:31 | #6

    @Jeff

    **I don’t know whether I should be disappointed in my ‘peers’ or if I should be paranoid about the study’s data.**

    I’m going with the paranoia… it fits my personality when it comes to advocacy research on virtually any issue. Considering how frequently I’ve seen statistical results “misused,” I’ve come to doubt reports that are reported second hand. I’m more inclined to trust the actual researcher’s paper (partly because it defines variables, describes the design of the study, and typically (if it happens to be survey) provides a complete listing of the questions with evaluations of the effectiveness of the questions (especially if there were any results that were surprising to the researchers).

    Part of my background is in research (educational/social science) and experimental design, both quantitative and qualitative. The heartburn isn’t nearly as bad when it’s clear the person using the results just doesn’t understand what he’s working with or makes an honest mistake. But the example I gave from the Alabama Law Review is just pure dishonesty. Saying, “an overwhelming majority of Americans disagree with felony disenfranchisement” is simply a lie. Even though the author mentions in his notes that the actual response was over 80 percent of Americans felt the right to vote should be restored to convicted felons at some point, there is no excuse for the blatant misuse of research results. This kind of crap fits the old saw that statistics don’t lie, but liars like to use statistics.

    Oh, and *dude* – legalize weed? Oh yes. 😀

    I also agree with the portion you call out as “loony.” That’s a result that should have made the researcher’s ass twitch too – it presents a perfect reason to re-evaluate the survey design to find out if the questions involved were worded poorly, or were they placed in poor relation to other questions that may have caused a misinterpretation of the intended question. Survey design is a tough gig, and all too frequently it’s a slip shod job… and to think, policy is often determined by some of these equally wonderful “opinion polls…”

    Where possible, I tend to try and track down original research (especially if it triggers my bullshit alarm). Having original data is helpful… umm, witness climate gate, or what is coming to be known as CRUgate.

    Cheers Jeff!

  7. Jeff
    December 14th, 2009 at 22:35 | #7

    As I reread the article, I wanted to comment on this:

    “Come on, seriously, if criminals could register to vote, then they’d certainly register as democrats…”

    When they write things like these (no, I don’t know who ‘they’ are, but they write some really stupid things), I think we’re meant to infer that these poor misguided criminals are merely the product of an economically repressed class of people (Democrats all) kept in a vicious cycle of criminality by the aristocratic capitalists (Republicans) bent on ruling the world by hoarding all the wealth through the evil pursuit of personal achievement.

    I don’t think for a moment that the person writing that felons would certainly vote Democrat blames them for their crimes.

  8. December 17th, 2009 at 02:26 | #8

    @Jeff

    Hear, hear! Not sure precisely how, but I’ve heard many left leaning democrats and independents complain about the aristocratic republicans… or an “American aristocracy.” It’s a common theme over at Blue Oregon: “The one-year repeal of the estate tax, a key barrier against the rise of an American aristocracy, is the legacy of the Bush Administration.” While I understand the comparison, rich people, by virtue of being rich, are a long way from nobility – both figuratively and literally. Whether wealthy persons are deserving of their wealth is hardly the purview of our government anyway… until now of course.

    “I don’t think for a moment that the person writing that felons would certainly vote Democrat blames them for their crimes.” You’re right there, it is most certainly the fault of that nebulous critter named “society.” And that’s been a convenient bogeyman for quite some time. Still, I chose this profession thinking I might make some small impact on the way things are done here 🙂 That may be wishful thinking, but it occasionally keeps me going.

    Cheers!

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