Monday, April 9, 2018

Why felon disfranchisement makes sense


The following article appeared in Powerline on April 8th

By Paul Mirengoff

George Will argues in favor of broad restoration of felons’ right to vote. How broad he doesn’t say, but his column effectively presents the case for a more expansive restoration than exists in many jurisdictions.

There are good arguments against moving in that direction, however. Roger Clegg presents them in a critique of Will’s piece. This is an issue over which reasonable people can differ, but I think Clegg has the stronger case.

Will asks, “What compelling government interest is served by felon disenfranchisement?” Clegg responds: “If you’re not willing to follow the law, then you should not have a role in making the law for everyone else, which is what you do when you vote — either directly (in the case of a referendum or ballot initiative) or indirectly (by choosing lawmakers and law enforcers).”

I would add that if you haven’t been willing to follow the laws that prohibit felonies, you stand a good chance of not following it in the future (nationally about a 50 percent chance according to Clegg). Therefore you should not have a role in making the criminal law — directly or indirectly.

Will says it “is not a legitimate government objective for elected officials” to “fine-tune the quality of the electorate.” Clegg counters that this is, in fact, a function of government — one that the Constitution implicitly acknowledges when it leaves the choice of deciding who votes to the states (with some specific prohibited qualifications, such as race and sex).

If the government did not “fine-tune” the quality of the electorate this would mean, as Clegg points out, that “not only criminals but also children, non-citizens, and the mentally incompetent must be allowed to vote.” In fact, he continues, “we do have certain minimum, objective standards of responsibility and commitment to our laws that we require people to meet before they are given a role in the solemn enterprise of self-government.”

If politicians don’t impose and adjust them, then judges will. I prefer that politicians do it.

Will insists that we must “facilitate[e] the re-entry into society of released prisoners who were not improved by the experience of incarceration.” Clegg argues that “it is precisely because such a high percentage of criminals who are released are so unimproved that. . .it makes sense to wait some period of time, as Florida [the focus of Will’s article] does, to make sure that the felon really has turned over a new leaf”:

After that period of time — how long would depend on the crime committed, whether there had been previous felonies, how long ago the crime or crimes were committed, and what the felon has done since being released — then the felon could have the right to vote restored. It should be rather like a naturalization ceremony, at a courthouse with friends and family present to celebrate, some official making a nice speech, American flags, and the felon raising his right hand.

This system would incentivize the reintegration of the felon into civil society. Automatic or easy re-enfranchisment would not. And, as Clegg concludes it would re-enfranchise thousands, maybe millions, of felons who have not changed their ways, so that people unwilling to follow the law would be involved with making the law for everyone else.

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