More on Felony Disenfranchisement, America’s Most Racist Policy

prison-gerrymandering

Columbia Law Professor Vivian Berger, quoted at TalkLeft, writes:

These laws have a disproportionate impact on minorities — 1.4 million black men cannot vote. That is a rate of 13 percent — seven times the national average. A majority of the disenfranchised live in the South: Alabama, Mississippi, Florida, Kentucky, Tennessee and Virginia all bar former prisoners from voting. Some of these states adopted disenfranchisement provisions during Reconstruction in order to evade the 15th Amendment’s ban on withholding suffrage from freedmen. (Disenfranchising crimes were carefully selected to disqualify large numbers of blacks.) In Florida and Alabama, the racial effect is greatest; blacks comprise almost 50 percent of the disenfranchised.

Given the disparate targeting and treatment of blacks by the criminal justice system, felony disenfranchisement adds a second level of insult and injury to minority ex-offenders. It harms individuals and also limits group political power.

Although these laws originated with racist Democrats over a century ago, they are maintained and sometimes expanded by the current GOP. For instance, “As one of his first actions after taking office in 2011, [Florida Governor] Scott, as chairman of the Florida Board of Executive Clemency, undid automatic restoration of voting rights for nonviolent ex-offenders that previous Gov. Charlie Crist helped adopt in 2007. Since then, the number of former felons who have had their voting rights restored has slowed to a trickle, even compared with the year before Crist and the clemency board helped make the process easier.”

No one should be disenfranchised after having served their time.

In fact, US citizens should have the right to vote while in prison. Having a huge population of citizens who are especially subject to the government’s dictates, but have no right to vote, invites abuses and is no way to run a democracy.They are people, and citizens; they should have the right to vote.

Furthermore, white racists have rushed to do the same thing with felons that their predecessors did with slaves – use them for head-counting purposes to increase the voting power of white people.

The federal government, in the form of the Census Bureau, is permitting states and counties all over the country to undermine the “one person, one vote” concept. The Census Bureau is doing this by counting prison inmates as residents of the prisons where they are serving their sentences instead of counting them as residents of the places they lived before they were incarcerated. Then, to make matters worse, when the inmates go back to their residences, their prison “districts” continue to reap the benefits of the Census count. In a nation where millions are incarcerated, this is no small accounting glitch.

The result is that rural counties (where prisons typically are located) gain the benefit of higher Census populations (and thus more legislative representation). The problem would be one of semantics, of course, if prisoners were allowed to vote. But in the vast majority of cases, felon disenfranchisement laws ensure that they do not.

Fred Grimm, in the Miami Herald, describes how this works in Florida:

North Florida pols have packed their state House districts with a particularly low-maintenance category of citizens. The kind who don’t show up at townhall meetings clamoring about too much traffic or lousy parks or crumbling bridges or under-funded schools or the need for more cops on the beat. They never, ever complain about too few cops.

Best of all they don’t go around town grumbling that folks should vote for that other candidate. They can’t. They can’t vote. They’re state prisoners.

They’re the great gift urban counties ship up to state representatives in Florida’s rural prison belt, whose districts encompass Sumpter or Bradford or Baker or Hardee or Calhoun and other counties where incarceration is a major local industry and inmates represent a sizeable chunk of the local population.

Come time to redistrict, every 10 years, those inmates — most of them big city homies — are counted along with the local population, making prisoners a valuable political commodity and consigning elected officials, particularly state reps, political power out of whack with their actual voting constituency.

As you can see from the map at top, some localities have banned prison gerrymandering – but most haven’t. The Census Bureau is talking about changing how the Census counts prisoners, and that’s good; however, I worry that any reform done by the Obama administration is subject to being undone by future Republican administrations.

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37 Responses to More on Felony Disenfranchisement, America’s Most Racist Policy

  1. 1
    gin-and-whiskey says:

    The federal government, in the form of the Census Bureau, is permitting states and counties all over the country to undermine the “one person, one vote” concept. The Census Bureau is doing this by counting prison inmates as residents of the prisons where they are serving their sentences instead of counting them as residents of the places they lived before they were incarcerated.

    Right off the bat, this is wrong. “You vote here, not there” is not the same as “some folks get more than one vote”

    Then, to make matters worse, when the inmates go back to their residences, their prison “districts” continue to reap the benefits of the Census count. In a nation where millions are incarcerated, this is no small accounting glitch.

    This is bizarre. Does this author not get the math?

    Imagine that Jim lives in Georgia and ends up in prison in Alabama.

    The Census takes a swipe of population once a decade. If Jim is in an Alabama prison in 2010 during the Census sweep then he gets classified as living in Alabama. As with ALL such determinations, the classification would continue until the next census–so even if Jim gets out in 2011, he is “counted in Alabama” until 2020.

    But that also works in reverse. If Jim goes to an Alabama prison either before or after the Census sweep, then he is classified as having spent all ten years in Georgia–even though some/most/almost all of them might have been in Alabama. Assuming that prison sentences are random w/r/t censuses (i.e. we don’t see a big change right before the Census) then this will all even out, and the average will be fine.

    Finally, this works just the same way for NON-prisoners. If the entire state of CA were to move to NY tomorrow, it wouldn’t affect census-based stuff until 2020. That isn’t discriminatory, it’s just how the Census works.

    W/r/t prisoners being assigned a “residence” of a prison: again, that is arguably the best solution.

    After all, they need to be a resident SOMEWHERE, right? Is it better or worse to have them vote in a place where they don’t actually reside? Jim lives in Georgia and ends up in prison in Alabama. Should Jim be prevented from voting in Alabama (where he might be eligible to influence his prison conditions, etc?) There are pros and cons to both sides, as I’m sure you can see. Or should Jim be allowed to vote in Georgia, even if he wouldn’t meet Georgia’s normal residency requirements because he’s not spending any days/year actually living there? Even if he doesn’t have an apartment or a utility bill or anything else? Again, there are pros and cons to both sides.

    There are multiple answers. But so long as they don’t affect Jim’s vote then they’re just different; it’s not “right” and “racist”.

    What tends to be worse (and is very poorly explained in the article) is the INTERPLAY of residency and franchise. IOW: States which have a high concentration of prisoners tend to have a higher disenfranchisement rate: this is probably because they don’t want an influx of problematic voters. So when you switch residency to those states, the switch effectuates a disenfranchisement even though it’s the disenfranchisement law, and not the switch, that is the problem.

    Focusing on disenfranchisement makes sense. Focusing on the Census does not.

  2. 2
    Charles S says:

    g&w,

    I’m not sure why you substituted state-to-state movement of prisoners (which happens, but is a small fraction of the total prison population) in your analysis for same state city-to-rural movement of prisoners, which happens to a huge degree. I don’t think it helps your analysis at all to do so (for instance, the idea that prisoner disenfranchisement is a tactic designed to handle an influx of “problematic voters” is baseless- prisoner disenfranchisement is nearly universal in the US and predates significant state-to-state prisoner transfers, but probably arose from misframing this around state-to-state prisoner transfer).

    You are right that counting prisoners with voting rights as living at the prison is not necessarily unreasonable, but how many states allow prisoners to vote while they are in prison? Only Maine and Vermont do that, so when you say that what is really important is the interplay between where prisoners are counted as living for district apportionment purposes and the fact that they can’t vote, for almost all of the US you are not saying anything different than saying that what is really important is where prisoners are counted as living for district apportionment purposes, because in almost all states in the US, imprisoned people can’t vote.

    Since it is paired with denying Jim the right to vote, should I take it you view the way prisoners are apportioned currently in the US (outside of Vermont and Maine) as wrong and racist?

  3. 3
    gin-and-whiskey says:

    Charles S says:
    so when you say that what is really important is the interplay between where prisoners are counted as living for district apportionment purposes and the fact that they can’t vote, for almost all of the US you are not saying anything different than saying that what is really important is where prisoners are counted as living for district apportionment purposes, because in almost all states in the US, imprisoned people can’t vote.

    Not really: if I wanted to say that I would have ;)

    I don’t see an inherent problem with district apportionment for purposes of representation. Like I said, it has both pros and cons and I don’t think it’s accurately presented in the linked article. I don’t know enough of the detailed facts to come to a conclusion about whether it’s beneficial or detrimental overall, and I don’t trust the article’s author to accurately set them out.

    Since it is paired with denying Jim the right to vote, should I take it you view the way prisoners are apportioned currently in the US (outside of Vermont and Maine) as wrong and racist?

    I’m not really confident that we’re communicating accurately, so I don’t think that I can sign on to your summary. I’d support a reduction in disenfranchisement laws–or, better yet, a reduction in some of the convictions that end up disenfranchising people. I don’t think apportionment laws are racist; I think many (not necessarily all) disenfranchisement laws are racist.

    And even some of those laws aren’t a problem. I don’t think it’s helpful or especially accurate to focus to such a heavy degree on disparate impact. Disparate impact is something that we rely on when we don’t know the main cause of a problem . But here, we know perfectly well what the main cause problem is–selectively racist targeting, conviction, and sentencing of POC. That largely happens at the level of police, courts, and juries. I don’t think it’s reasonable to assume every downstream party is racist (the US census?) because they’re acting neutrally and being handed a racist pile ‘o shit by the upstream folks.

    IOW: Felony disenfranchisement is a bad thing in most cases because it’s stupid, and I generally oppose it.

    High targeting and conviction of POC is a bad thing for a shit-ton of reasons, including but by no means limited to the fact that it’s racist–which is why I strongly and actively oppose it.

    But so long as people of different races are disenfranchised equally for the same crimes then it’s the arrest/conviction stage which is racist, not the disenfranchisement stage.

  4. 4
    RonF says:

    It seems to me to be at least defensible that those people with sufficient contempt for the law to have committed felonies should forfeit the right to have a vote on who should make and enforce those laws.

  5. 5
    Sebastian says:

    I think that there are a number of separate issues here, and while it is certainly important to look how they interact together, we should first look at each separately. I will not touch what’s racist and what’s not. There are too many definitions, and some of them disgust me more than most of the bigotry I have personally encountered.

    So, the issues:
    1. Former prisoners are not allowed to vote after they have served their sentence and even probation.
    2. Prisoners are not allowed to vote while incarcerated.
    3. Prisoners are counted as residing in the administrative division where they are incarcerated.

    I think that (1) is obviously wrong. I cannot come with any arguments in defense of it, even for the worst offenders. If they have been judged fit to be released back into society, they should have all the rights of a citizen. Yes, to answer the most obvious question, I do not think that firearm ownership rules should be different for former inmates and other citizens.

    I’m not quite so sure about (2). My first instinct is that prisoners should be allowed to vote, because they can be affected by the results of voting. On the other hand, we have restricted their rights in other ways, and it’s hard to argue that the same reasons cannot apply for restricting their vote: if one can be too dangerous to allow on the streets, one can be too dangerous to allow in the voting booth. This isn’t a clean cut issue, and those are best decided by, wait for it… voting. And as all other voting, it should be done by those allowed to vote by the existing laws. So, if you feel strongly about this, one way of another, do something about it. Ampersand blogged about it, and I have wasted ten minutes writing this. That’s about as much as I care to do.

    Now, (3) is once again a no-brainer for me. What’s the purpose of the Census? Getting information about a locality, so that it can be better understood, and its obligations and rights can be justly apportioned. Roads, water allocation, representation, availability of services… in the ideal world, all of these should be affected by Census data. Can anyone argue with a straight face that, on the whole, the prisoner should be counted as residing in the state where he is not eating, drinking, using electricity, being treated or being served by transportation?!

    So, when I view each issue separately, I think that prisoners should be residents of the locality where they are incarcerated and that they should regain their voting rights immediately after completing their sentence and possible probation. As for where they should retain their voting rights while in jail, this should be up to a vote, and right now, I would vote ‘Yes’.

    But because I try to pretend that I am an honest guy, I will make a full disclosure. Five years ago, I lived in a city with 70,000+ population, 38,000 registered voters, and 5,000+ prisoners. I would have had a much harder time deciding how to vote on (2) then. I think I would have still voted ‘Let them vote’, but I would have been very worried about voter manipulation and fraud.

  6. 6
    Charles S says:

    Fair enough. I agree that if we had any hope for a national movement to end prisoner disenfranchisement, that it would be better to focus on that than on apportionment issues. Fixing apportionment is only a worthwhile goal because there is no significant movement to end prisoner disenfranchisement (released felon disenfranchisment, yes, prisoners, no).

    If you look into the history of convict disenfranchisement laws, you will find that they are explicitly racist in origin in the US, as well as being racist in effect in the current situation. That it wouldn’t be racist if it were implemented for other reasons in a system that wasn’t racist in who ended up as felons doesn’t seem like a very interesting point to me, particularly given that it is an bad policy whether or not it is racist.

    I’m not sure what you think the arguments for apportioning disenfranchised prisoners to the districts they are imprisoned in are (the only one I can see is that it is easier than apportioning them to the location of their previous residence, but that seems like weak tea). Even if there are pros and cons to different ways of apportioning disenfranchised prisoners, one of the big cons of apportioning them to the location of the prison is that it has unrepresentative effects, so unless there are big cons to apportioning them to their last residence, then it makes sense to me to try to avoid the unrepresentative effects. Whether you cavil at calling those unrepresentative effects racist is not really that interesting to me.

    The case of how apportionment of enfranchised prisoners is a side issue, although one I’d agree the census should incorporate into its rules, given the existence of Maine and Vermont and the fact that I’d like to see prisoner enfranchisement expand to other states (although I don’t expect to see that happen).

  7. 7
    Charles S says:

    Damn, missing end bold tag. Sorry. Only “effects” should be bolded.

  8. 8
    Charles S says:

    Fair enough, of course, in response to g&w.

    It is unsurprising but not actually deserving of a “fair enough” that RonF thinks that there are arguments to be made (but can’t be bothered to actually make them) to justify a policy historically created by explicit racists and that coincidentally is disparately decided to be a good policy in states with a significant non-white population and not in conservative states with very little non-white population, and that has a disparate racial impact.

    As to Sebastian’s point that the Census should count people where they are, I think that prisoners should be recorded as living in the prison location, obviously, but that the census should also determine their previous residence and that they should be treated as living in their former residence for purposes of apportionment of federal and state congressional districts. It is actually possible to do both.

  9. 9
    Charles S says:

    Sebastian, re living in a prison town and not wanting prisoners to make up the deciding votes, I think I’d be fine with enfranchised prisoners being required to vote absentee in the location of their previous residence, particularly if they were apportioned there as well.

  10. 10
    gin-and-whiskey says:

    Charles S says:
    If you look into the history of convict disenfranchisement laws, you will find that they are explicitly racist in origin in the US,

    Honestly, I just care about what the law says and what it does; I never really pay attention to who wrote it. Good people write bad laws and bad people write good laws, and they all turn on what they say/do. So IMO there’s not much point in examining the authors. I don’t mean to be flip, it’s just not part of my analysis.

    I’m not sure what you think the arguments for apportioning disenfranchised prisoners to the districts they are imprisoned in are (the only one I can see is that it is easier than apportioning them to the location of their previous residence, but that seems like weak tea).

    Not intending to be an exhaustive list, some example include:

    -Lack of reasonable alternatives (I suspect, though do not know, that a non-insignificant # of prisoners don’t HAVE a “residence,” especially single inmates with longer sentences. Where do you place those folks? Who decides where they get to vote? What sort of prior residence qualifies them?)

    -Consistency. If you don’t have a place to live in NYC and are in prison outside the city, then you’re functionally in “I’m planning to live there as of ______” status. So are a ton of people who aren’t allowed to call themselves residents. Why make an exception for you

    -Attempts to even the power balance between relatively high voting-bloc urban areas and more rural/poor areas which may not ordinarily want prisons. I.e. if you live in Beverly Hills then you might need to deal with the fact that a poor outlying county will end up with proportionately higher representation.

    -Accuracy (if you’re spending the entire year in Prisontown and you don’t actually spend a single day anywhere else, is it really that bizarre to suggest that you “reside” there?)

    -Ease, of course, though I think you may be underrating the benefit of ease.

    -.Even if there are pros and cons to different ways of apportioning disenfranchised prisoners, one of the big cons of apportioning them to the location of the prison is that it has unrepresentative effects,

    I’m not sure what you mean by “unrepresentative effects…?” Let me posit a question which may help me understand:

    Robbing Ralph lives in Ringtown. He gets convicted of a state felony and is sent to jail in Ringtown for 10 years.
    Felonious Frank lives in Falltown. He also gets convicted of an identical state felony and is sent to jail in Ringtown for 10 years, along with Ralph.

    What do you see as the difference in outcome between Frank and Ralph, if Frank is assigned to Ringtown?

    Whether you cavil at calling those unrepresentative effects racist is not really that interesting to me.

    Me neither. Let’s agree to skip that part of this.

  11. 11
    Charles S says:

    g&w,

    Before continuing, I’d like to mention that I appreciate that we actually managed to communicate and agree on a concept between us (that prisoner disenfranchisement is actually the greater wrong, and apportionment issues are just a follow on effect).

    However, responding now to your question about what I mean by unrepresentative effects [in apportionment]. If you invent scenarios that don’t accurately reflect the situation, then they don’t seem to me like they can tell us much. If prisons were located where crimes were committed, then the unrepresentative effects would go away. If prisoners were assigned to be imprisoned in the former home of another randomly selected prisoner (equivalent to your scenario), then the unrepresentative effect would largely go away. If (as is actually the case) prisoners predominantly come from the major centers of population and are assigned as nominal (but not actual) voters where they are imprisoned in rural areas and small towns, then the residents of the small towns gain effective voting power that is not representative of their actual proportion of the population. This is made even more significant if the demographics of prisoners don’t resemble the demographics of the small towns that now have representative power as though they represented the prisoners.

    Most criminals are not transients. Most prisoners have friends and family where they lived and were arrested and convicted. Most prisoners will go home when they get out of prison. Their friends’ and family members’ voting preferences are much more likely to align with their own voting preferences, so if we are going to deny them the right to vote, it is better to assign the proportionate power of their vote to the people in their home area than to the people who happen to live near where they have been imprisoned. The voting preferences of prison guards and towns that depend on prison income certainly do not reflect the interests of prisoners, so it is particularly ugly to treat them as though they did.

    As to your list of pro’s for the existing system of apportionment, ease is about the only one that seems significant. I’m not particularly interested in arguing them further, but here are my objections to your listed ones: 1) Lack of alternatives: I think you are over-estimating transient criminals. Assign them to where they committed the crime, I doubt they are going to be a substantial number, and if someone has to unfairly benefit from increased voting power, it may as be the people who were harmed by the crime. 2) Consistency: this is weak tea. They are in a highly distinct class, and have been involuntarily relocated. Check how refugees (or even soldiers) are frequently treated in fair and free elections, and you will see that treating involuntary non-residents as residents is not a new idea. 3) Power balance: this one is a real reach, I’m just going to assume you haven’t thought this one through enough to see how ugly a method of balancing power this is, and how unrepresentative Beverly Hills is as the urban location you’ve just happen to choose to use as your example. 4) Accuracy: As I responded to Sebastian, the census should accurately count prisoners as being imprisoned where they are imprisoned, but that shouldn’t be used for apportionment unless they are enfranchised prisoners. Prisoners are not accurately represented by the enfranchised people living near the prison, so it is not accurate to give those people political power based on the presence of prisoners.

  12. 12
    gin-and-whiskey says:

    Charles S says:
    January 23, 2014 at 3:34 pm

    g&w,

    Before continuing, I’d like to mention that I appreciate that we actually managed to communicate and agree on a concept between us (that prisoner disenfranchisement is actually the greater wrong, and apportionment issues are just a follow on effect).

    I join you in being happy about it. Let’s keep going…

    Reading your response I think we’ve been having an inherent miscommunication:

    I thought you were complaining about representation differentials between prisoners. Which, of course, made little sense to me: they’re disenfranchised or not, and they don’t lose representation based on their assigned county. that’s why i used that hypothetical.

    I now understand (or so I think) that you’re complaining about representation differentials between NON-prisoners. Assuming that I’ve now grokked your point…

    If (as is actually the case) prisoners predominantly come from the major centers of population and are assigned as nominal (but not actual) voters where they are imprisoned in rural areas and small towns, then the residents of the small towns gain effective voting power that is not representative of their actual proportion of the population.

    Yes, of course. As I said, I suspect that is largely a tradeoff meant to encourage the residents of the smaller towns to actually permit a prison (not everyone wants prisoners as neighbors) and the flip side of the coin is that it prevents the large and populous cities from dumping prisons there against the rural folks’ will: the more they dump, the less advantage they have in future dumping.

    But this seems like a tradeoff which the city (under-represented) folks want. After all, they have so many people in cities that they would, with relative ease, be able to build city prisons (and capture those voters) if they actually wanted to do so. But they don’t want to do so–the prison costs would be multiplied among a lot more people (folks don’t like prisons) and the benefits would be marginal (a few thousand is a drop in the bucket for a huge city.)

    Most criminals are not transients. Most prisoners have friends and family where they lived and were arrested and convicted. Most prisoners will go home when they get out of prison.

    sure, if by “home” you and I are both meaning “to the home neighborhood” and not necessarily “to a particular physical residence maintained throughout the prison term.” But my point is that our usual system of voting assignment and registration tends to require some more permanence than “I’m from the neighborhood.”

    Their friends’ and family members’ voting preferences are much more likely to align with their own voting preferences

    Sure.

    , so if we are going to deny them the right to vote, it is better to assign the proportionate power of their vote to the people in their home area than to the people who happen to live near where they have been imprisoned.

    I don’t agree. The pointof denying someone the right to vote–which has a whole ton of problems, of course–seems to me inherently opposed to the concept that we’d try to figure out how they would have voted (if they could) and find some sort of proxy. If we wanted to enable them then we wouldn’t be restricting their vote in the first place, right? IOW, to the degree that it’s an appropriate punishment (which I think it rarely is) then we should be doing the opposite of what you propose.

    The voting preferences of prison guards and towns that depend on prison income certainly do not reflect the interests of prisoners, so it is particularly ugly to treat them as though they did.

    No, of course not. I don’t think that’s true at all, so either I misspoke, you misread, or we’re miscommunicating.

    As to your list of pro’s for the existing system of apportionment, ease is about the only one that seems significant.

    Hmm. Well, let’s just move on.

    3) Power balance: this one is a real reach, I’m just going to assume you haven’t thought this one through enough to see how ugly a method of balancing power this is, and how unrepresentative Beverly Hills is as the urban location you’ve just happen to choose to use as your example.

    Q: How do you keep prisons out of the neighborhood if your constituents don’t want them there?
    A: Put them somewhere else.
    Q: How do you keep the prison destinations from complaining?
    A: Make them happy.
    Q: How do you make them happy?
    A: Give them benefits, including, possibly, the additional federal and state funds (and voting blocs) which relate to census apportionment.

    I don’t think this is as ridiculous as you think, at all. It’s ugly, but not much uglier than the alternatives.

    4) Accuracy: As I responded to Sebastian, the census should accurately count prisoners as being imprisoned where they are imprisoned, but that shouldn’t be used for apportionment unless they are enfranchised prisoners. Prisoners are not accurately represented by the enfranchised people living near the prison, so it is not accurate to give those people political power based on the presence of prisoners.

    You know… I agree. It’s just that the relatively minute issue of proportional representation which may be increased by misapportionment seems to be a small issue compared to the much larger issue of disenfranchisement. So let’s move on and talk about that. It’s more interesting anyway.
    ,
    I’ll go first: I think permanent disenfranchisement is appropriate in theory for very serious crimes. If you murder someone, life-long loss of voting seems fine to me.

    I think “while in prison” disenfranchisement is more OK, though still generally not ideal, both because it is a legitimate punitive tactic and because people in prison may arguably lack access to the best information to make political decisions. Even so, I personally would prefer that it be severely curtailed, again to a selected set of relatively serious crimes.

    More generally, I think that we need to return to the presumption that “people can/should vote unless there’s something really seriously wrong with them” and not that “people should be barred from voting unless they can be proven to be ideal.”

  13. 13
    Charles S says:

    I don’t think we disagree all that much on prisoner disenfranchisement. I think it is better to keep all prisoners enfranchised because the detrimental effects that the small numbers of lifers (and the tiny number of conceivably deserving lifers) can have on elections is negligible, but the positive effects of providing prisoners, including lifers, any form of civic engagement are substantial (for the individual prisoners, and therefore for society as a whole). Most murderers, even most first degree murderers, are not lifers and will eventually be released. Providing them with an opportunity to remain connected to the civic life of the outside world is a good thing. Punishing them by taking that away is like punishing them by denying them access to in-prison education and counseling, once can justify it as punishment because it is unpleasant, but it is a really bad idea. But we basically agree.

    Returning to apportionment, the aspect of your pro (3) that I object to is not the idea that it plays a part in the process (I agree something like it does, look at the Louisiana prison system and it is obvious that prisoners are currency), but rather the idea that it should be treated as a “pro” rather than a “con.” Since state house districts are much smaller than a city, it is not the urban area as a whole that loses out on representation, instead it is the poorer and less white sections of the cities that have their representation traded away to rural areas. That seems like the specific “con” that the Miami Herald piece Amp linked to is pointing at.

    Admittedly , the Louisiana system runs on treating prisoners as a source of profit for rural areas, which is probably much more effective in attracting interest than the minor gain of apportionment, and which has constructed a truly monstrous system. So while disenfranchisement and segregation and apportionment of prisoners combine to reduce the effective voting power of black neighborhoods in New Orleans by about 7% (which is certainly not negligible), and the equivalent of 1 seat in the state house is apportioned from prisoners, that harm to some and benefit to others is certainly dwarfed by the harm of locking up 40,000 people and the benefit (to sheriffs and the private prison companies) of the cash that accompanies them.

  14. 14
    Nancy Lebovitz says:

    My first exposure to the issue of disenfranchising felons was something by a homosexual man written when homosexual sex was a felony. He pointed out that being convicted under that law affected people’s ability to change the law.

    From a Wall Street Journal article back when I was reading the WSJ: Clever county administrators discovered that prisoners were counted as poor people. This meant that a county with prisoners could get Federal aid money but not spend it on the prisoners. This isn’t a voting issue, but it goes with your point about thee effect on representation.

    RonF: your point might make sense if “felony” meant “extremely serious crime” and there was a careful process which led to conviction. Instead, “felony” means “crime which someone decided should receive a harsh punishment” and the conviction process is notably sloppy.

  15. 15
    RonF says:

    There are felonies that are not serious crimes? I’d be interested in examples. Also, note that my earlier comment is not structuring disenfranchisement as a punishment.

    Also, I’m in favor of re-enfranchisement once one’s sentence has been served.

  16. 16
    gin-and-whiskey says:

    Not incidentally, a lot of this stems from an increasingly large definition of “felon.”

    “Felony” was, originally, a term reserved for the most serious crimes. That stuck around for a while; a felon in 1850 was likely to be a pretty bad dude. Even in 1960, the term “felony” meant something different. But in the last few decades we’ve really expanded the criminal code, so as of late “felony” has expanded to include multiple crimes which weren’t originally felonies.

    This means that “felon” is now a relatively poor match for “badness.” For example: Murder; rape; food stamp trafficking (over $250;) and larceny (over $250) are all felonies in Massachusetts. On the other side: Assault and battery; criminal harassment; operating an unlicensed child care program; and DUI are all misdemeanor offenses in Massachusetts.

    This is a larger problem because many other statutes and regulations address things like “felon status” without much regard to the fact that felon status is constantly expanding. Immigration is an excellent example, along with disenfranchisement. There are some subcategories (“major” or “serious” felonies; or “crimes of violence” which may include misdemeanors) but by and large “felony” remains the most common line in the sand.

  17. 17
    RonF says:

    GiW:

    I think that we need to return to the presumption that “people can/should vote unless there’s something really seriously wrong with them” and not that “people should be barred from voting unless they can be proven to be ideal.”

    I’m taking “convicted of a felony” as = “there’s something seriously wrong with them”.

    This means that “felon” is now a relatively poor match for “badness.”

    Well, now, that would depend on one’s definition of badness, which I would hope you would agree would be rather subjective.

    For example: Murder; rape; food stamp trafficking (over $250;) and larceny (over $250) are all felonies in Massachusetts. On the other side: Assault and battery; criminal harassment; operating an unlicensed child care program; and DUI are all misdemeanor offenses in Massachusetts.

    I have no particular problem with theft over $250 being a felony (bringing in both food stamp trafficking and larceny under the umbrella of “theft”) whereas operating an unlicensed child care program and DUI not being ones. In such an evaluation I’m presuming that the latter two would have no complicating factors . If there are such factors – if a child was harmed in your unlicensed child care program because it didn’t meet the licensing standards or if you crashed and injured or killed someone while driving drunk I presume additional charges would be brought. IIRC, if I smack you upside the head and do no more damage than raising up a red mark on your face, that’s assault and battery. Again, to me not a felony, but if I knock out a few teeth or you fall down and suffer a fractured skull I’m thinking additional charges would be brought.

    That’s my definition of “badness”. It may not agree with yours, but that’s what governments are for – to decide these things. And I think it’s entirely fitting that someone who is in jail for stealing $500 should not have a say in picking out the people who decide whether or not that should be a felony anymore – or voting on who the local school board members should be.

  18. 18
    Ben Lehman says:

    I know this is a old canard, but Ron?

    Have you ever either opened or discarded mail not addressed to you?

    You, too, may be a felon.

  19. 19
    Tristan says:

    … back in the real world: I know that some things slip through the cracks, and you can find some genuine wrongly-addressed-mail-openers among them, but mostly you have to really do some bad stuff to get a REAL felony conviction. Initial felonies are usually pled down etc.

    If you are sitting in prison with a hefty sentence, odds are that you did something pretty bad (and didn’t get caught a number of other times).

  20. 20
    JutGory says:

    Disenfranchisement is not a particular ax that I care to grind on about.

    My ax is the overcriminalization of life, which leads to disenfranchisement, which in turn leads to the problems with apportionment.

    Too many crimes with potential sentences that are too severe.

    So, I guess I would be backed one step up from g&w.

    -Jut

  21. 21
    williamdouglas says:

    This is a test comment

  22. 22
    Nancy Lebovitz says:

    There’s also the problem with plea bargaining– you get pointing for helping to convict someone else, which means people who are low status (not much information), loyal, and/or honest may get longer sentences than people who did worse crimes.

  23. 23
    RonF says:

    There’s also the problem with plea bargaining– you get pointing for helping to convict someone else, which means people who are low status (not much information), loyal, and/or honest may get longer sentences than people who did worse crimes.

    It’s worked the other way here in Illinois. The method used for convicting our sitting Governor’s two immediate predecessors of felonies committed in office was by giving their underlings a break on the condition of giving up information that was used to trace money up the food chain to the Governors.

  24. 24
    closetpuritan says:

    I wonder if, if more prisoners and former prisoners could vote, the issue of prison rape and violence would be taken more seriously? It might be a small enough segment of the vote that politicians still would not care, though. (If you’re against crime when the victims are criminals people might think you’re soft on crime…)

  25. Pingback: Millions To Be Spent On Battleground Secretary of State Races in 2014 | Alas, a Blog

  26. 25
    JoKeR says:

    My suggestion for apportionment for prisoners goes back to the constitution. We have a provision which seems to me to be applicable to the people we currently incarcerate. They should be counted as 3/5 of a person.

    [A genuinely offensive suggestion, offered out of either extreme ignorance or - more likely - out of a desire to incite a flamewar. Deleted and consider yourself warned. (ETA: On reconsideration, maybe it was just a joke. But if so, it was too too deadpan.) --Amp]

  27. 26
    RonF says:

    Not on topic about voting, but perhaps related on the basis of civil rights:

    The Commonwealth of Massachusetts is considering additional restrictions on gun ownership. “Among the commission’s 44 recommendations were those to permanently ban convicted felons from owning guns.”

    Based on what I’ve seen above regarding disenfranchisement on the basis of felony convictions, would you consider such a law racist?

  28. 27
    Charles S says:

    Well, felon disarmament was pretty obviously racist (in intent and effect) when Reagan and the NRA first pushed for it in response to the rise of the Black Panthers…

    Expansion of it in this manner is probably motivated more by a belief that this is one form of token gun control legislation that the NRA won’t oppose. I’d expect that it is racist in effect, but probably not in intent.

    Also, this would probably make more sense to discuss in an open thread. Maybe an older one that isn’t taken up with a discussion of/with MRAs?

  29. 28
    gin-and-whiskey says:

    Charles S says:
    February 5, 2014 at 8:04 pm
    Well, felon disarmament was pretty obviously racist (in intent and effect)

    Does that matter?

    I can get behind a concept that we should pay attention to intent w/r/t racism, as we do with most other things. I think that’s more in line with our general moral sense. I think that someone who intentionally tries to be a racist is acting much worse than someone who tries not to, or who does so accidentally.

    But there are many posters who maintain that intent is irrelevant. I’m sure you’ve seen the “intent doesn’t matter” line about 1000 times, right?

    If so: if intent is irrelevant, why are we talking about it? Surely it makes no sense for folks to claim that intent is irrelevant when defending a claim of racism, but that it is relevant when making one…

  30. 29
    RonF says:

    The very core of this thread is that disenfranchisement upon conviction of a felony is racist. I think it’s fair to characterize disenfranchisement as the removal of a civil right (the right to vote). In this case it’s done on the basis of due process. It’s represented here as racist because of it’s disproportionate effect on minorities as per the first article quoted, by Prof. Berger.

    What I’m asking is whether people here think this same logic is extensible to the removal of other civil rights via due process as has been proposed in the Massachusetts Great and General Court (to use their legislature’s full title) – knowing full well that in this case a lot of people here think that the right to keep and bear arms should not necessarily be a civil right or if so should be heavily restricted.

  31. 30
    gin-and-whiskey says:

    For what it’s worth, the right to vote is not specifically enshrined on the Constitution. Although I’m far from a big gun fan and although I generally support gun control, the right to bear arms is (however it’s interpreted) obviously enshrined as a specific constitutional right. That may not be for the best, but it’s still true.

    Legally speaking, disenfranchisement as the result of a criminal conviction (with the accompanying standard of innocence and due process) is much more defensible than the removal of gun ownership rights as the result of a civil judgment, such as a restraining order–or, in some cases, the denial of those right without any judgment at all.

  32. 31
    RonF says:

    Charles, felon disarmament as a vehicle for disarming blacks didn’t start with Pres. Reagan. It goes back to Reconstruction. The very first Jim Crow laws that were passed after the southern States were returned to self-government included laws disarming blacks and felons.

  33. 32
    Charles S says:

    And I’m sure I’ve seen elaborations and
    nuanced explanations of what “intent isn’t magic” (a more accurate expression of it than “intent doesn’t matter”) does and doesn’t mean, and whether it is a useful trope a 1000 times as well. I’m sure you, g&w, have too. If all those other nuanced discussions have left you of the opinion that if lack of ill intent can’t be used as a defense then obviously presence of ill intent can’t be used as a charge, I doubt I’m going to change your mind. Nonetheless, I’ll explain why intent isn’t magic, but it does matter (or you could just go read the second link).

    Intent isn’t magic. It does matter. If you accidentally do someone harm, responding to their complaint by saying you didn’t mean to hurt them doesn’t mean you didn’t hurt them and it doesn’t mean that you don’t need to make amends. I got into a car accident recently, which is to say I caused a car accident recently. It doesn’t matter that I didn’t mean to ram my car into the other person’s car, I am still liable for the damage I caused to the other car. It does matter that I didn’t intentionally ram my car into the other person’s car- that would have been assault with a deadly weapon, and I would have gone to jail (and my insurance wouldn’t have covered my car either). See how that works? Good or neutral intent doesn’t make the harm you do magically go away, and it doesn’t make you not responsible for the harm you do. Ill intent makes things far worse.

    If you were in the other car, and you realized that my car was about to hit yours, you would take evasive action no matter my intent, and you’d seek recompense from my insurance no matter my intent. If you were in the other car and you realized I was intentionally ramming your car with mine (say, I hit your car, backed up and rammed you again at full speed), you would be justified (legally and morally) in defending yourself with any means necessary. My lack of ill intent wouldn’t stop you from taking evasive maneuvers, but the presence of ill intent would open up your range of responses.

    There are good arguments for why you shouldn’t focus on intent when addressing someone’s racist or sexist actions (the last part of that essay is a good discussion of why to avoid focusing on intent when calling out harmful acts), but I don’t think those apply to discussing historical events. Nor do they apply once you are concerned more with enlisting 3rd party aid against someone who is a committed racist, rather that trying to convince someone to stop causing harm. I am not concerned that Reagan or the 1970′s NRA will get their backs up and fail to listen because I have said they acted with racist intent.

    I haven’t seen much discussion of intent not mattering that deals with policy issues rather than personal interaction, but I think that the same rule applies reasonably well: lack of racist intent doesn’t protect a policy from being bad because it is racist in effect, but racist intent in creating a law is worse than lack of racist intent. On the other hand, I think that there is much less reason to not explicitly point out ill intent when addressing people creating policy, particularly if you are not operating in the same domain. If I were a legislator arguing against Reagan’s anti-Black Panther measures, I would probably be better of ignoring the question of whether Reagan’s intent was racist, since I might need the favor of people who were friendly to Reagan in order to prevent the legislation from passing. On the other hand, if I were mobilizing popular opposition to it, then I would be better off dropping the pretense and talking about Reagan’s motives. Whether to ignore ill intent in discussing ill intent is a tactical matter, not a matter of ill intent being irrelevant.

  34. 33
    Charles S says:

    RonF,

    The currently existing laws on felon disarmament date to Reagan and the NRA in the 70′s. I am aware of the longer history, indeed, the piece I linked to talked about that (as well as the NRA support for the creation of concealed carry laws in the 20′s).

    As I said, yes, laws which are disproportionately harmfully affect people of color are racist in effect. I don’t think the MA legislature is motivated by racism, whereas I do think the Republican efforts to suppress the vote are motivated by racism, and (as I explained to g&w just now) I do think ill intent makes bad things worse.

    That I would personally prefer a very restrictive set of laws concerning gun ownership and that I dislike the newly discovered individual right to own guns (which was absent from ConLaw for the first 200 years of the history of the US- but I understand that ConLaw should change with the times, and these are times in which gun manufacturers are greatly ascendent in power) , does not actually mean that I am in favor of very restrictive gun laws for black people in the hopes that one day that will mean we can get rid of white people’s guns too. As g&w points out, I would expect that felon disenfranchisement (even lifetime felon disenfranchisement) is almost certainly still constitutional under the Roberts Court expansive interpretation of the penumbra of the 2nd amendment.

    I’m vaguely curious if you think these laws are racist (or even if you think the Redeemer government versions were racist), or if you even think these laws are bad, or if you are just engaged in a pointless exercise of tedious failed point scoring.

  35. 34
    RonF says:

    Atty. Gen. Holder has gotten into the act:

    Holder: State Laws That Bar Felons From Voting Are ‘Too Unjust to Tolerate

    “In many states, felony disenfranchisement laws are still on the books. And the current scope of these policies is not only too significant to ignore — it is also too unjust to tolerate,” Holder told a criminal justice forum at Georgetown University Law Center.

    Holder urged lawmakers “to stand together in overturning an unfortunate and outdated status quo.” And he called on the American people “to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the ‘most basic right’ of American citizenship.”

    Holder said state laws that bar felons from voting are “not only unnecessary and unjust, they are also counterproductive” because they perpetuate the “stigma and isolation imposed on formerly incarcerated individuals,” increasing the likelihood that they will commit future crimes.

    Such “outdated” laws have a “disparate impact on minority communities,” he said, suggesting that this is, at heart, a civil rights issue.

    Of the 5.8 million Americans who cannot vote because of current or previous felony convictions, 2.2 million are black, Holder noted.

    “And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”

    It’s not clear to me as to whether he’s trying to just get this changed for felons after they’ve served their time or for felons currently serving time as well.

  36. 35
    RonF says:

    I don’t think the MA legislature is motivated by racism,

    Why? Because they’re Democrats and thus not racist, unlike the GOP which is automatically racist?

  37. 36
    Charles S says:

    Well, at least you answered my question of whether you were just being a really tedious troll. :/

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