Skalduggery

A 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.

I’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.”