Fault Lines
28 April 2017

Courting The Criminal Vote

Aug. 5, 2015 (Mimesis Law) — While methods differ, virtually everyone wants to live in a society that protects civil liberties, while keeping the public safe. Regular readers of Fault Lines know that lots of bright people from a range of perspectives have plenty of ideas about how to improve America’s criminal justice system.

Amidst all of these opportunities for reform, however, you may have you been asking, “Yes, but how can the criminal justice system find a way to discourage convicted felons from participating in civilized society when they are released from prison?” Or perhaps, while reflecting on the fiftieth anniversary of the Voting Rights Act this week, you’ve wondered, “How, in this day and age, can we solve the perennial problem of just too darned many people voting?”

Or maybe not. But if these were the criminal justice conundrums that keep you up at night, I’d have some bad news for you.

California’s secretary of state, Alex Padilla, announced Tuesday that the state will drop its appeal of Scott v. Bowen, a decision that will allow approximately 73,000 people convicted of felonies to vote.

California, like many states, places limits on the voting rights of people convicted of crimes. California, however, allows people convicted of felonies to regain access to the polls once they have successfully completed the terms of their incarceration and parole. What about folks who are no longer in prison but who are still living under supervised release?

The answer to this question is crucial in California. In response to litigation that ultimately led to the United States Supreme Court’s ruling in Brown v. Plata, California Governor Jerry Brown pushed through legislation to reduce overcrowding in the state’s prisons. The Realignment Act allowed certain lower-level felons to be released under one of two new forms of criminal justice supervision — “mandatory supervision” and “post-release community supervision.”

In 2011, the state’s highest election official, then-Secretary of State Debra Bowen, announced that California considered mandatory supervision and post-release community supervision to be “functionally equivalent to parole.” Consequently, thousands of individuals released from the state’s prisons under these new categories of supervision would not be allowed to vote.

The ACLU took up the cause of the disenfranchised ex-offenders. The Superior Court of Alameda County found in their favor. It issued a writ of mandate prohibiting the Secretary of State from preventing individuals on post-release community supervision or mandatory supervision from voting.

The state’s appeal of the decision was pending until Secretary of State Padilla’s announcement this week. The news means that California will no longer stand between these individuals and the polls.

Sure, all of those ex-cons eager to make their way to the polls are pleased. But what good does this do for other Californians? What are the consequences of lightening the state’s grip on the policy of felon disenfranchisement?

Unless the U.S. penal system aims unabashedly for permanent warehousing of criminal offenders, re-integrating felons into civilized society should be a part of everyone’s picture of criminal justice. We want folks to serve their time, then emerge from prison motivated to join the law-abiding citizenry.

No matter a person’s earlier choices, we hope that he will embrace the mundane-but-moral drudgery of working hard, paying taxes, driving over pot holes, and attending PTA meetings. We hope that he might start a small business, preferably on the right side of the law. We hope, in our criminal justice fantasies, that the ex-offender will feel invested in his community. We hope that he will demonstrate his investment in the sorts of benign, if bland, ways that the rest of us do.

What could be a better sign of benign participation in civilized society than voting? Voting, particularly in state and local elections, not the sexy national races, is downright banal. You’d think that states would encourage, rather than discourage, ex-convicts to accept a post-release life filled with the “downright banal.”

Nearly any state restriction whatsoever on who above the age of majority can cast a ballot seems obtuse for another reason too: disenfranchisement laws are unlikely to do much of anything in terms of statewide voter activity.

Political data expert Paul Mitchell reported that in California last year, the average voter was not only older than the average Californian, but the average voter was older than the average Californian’s parents. Only 8.2% of Californians ages 18 to 24 voted in the November 2014 election. Less than 20% of eligible California voters ages 25 to 44 voted. Yet, nearly 60% of eligible Californians between the ages of 65 and 74 turned out.

Voting appears to rival visiting a rheumatologist and shopping for denture cleaner in terms of edgy, youthful cache.

If most California felons follow the lead of their non-felon peers, they still won’t vote much, even after the State of California’s concession this week. Even with the legal right to head to the polls on election day, former offenders are likely join other eligible California voters in staying home in disproportionate numbers.

So, fussing with felon disenfranchisement seems like, quite simply, a waste of time. Has crowd control at polling stations really become that much of a problem that California needs to allocate time and attention to reducing the number of eligible voters?

Nevertheless, some people may remain committed to using the polls as a retributive tool against criminal offenders. But of all the privileges to keep from those who break the social contract by committing serious crimes against their neighbors, voting seems like one of the least likely candidates. (Weak pun fully intended.) I mean, take away a Californian’s Compassionate Use license, if you want to bum him out. But the right to play an infinitesimal part in picking the next comptroller?

If you really want to deprive felons of a cherished liberty freely exercised by so many law-abiding California citizens, then consider taking away felons right not to vote. Compel Californian’s convicted of felonies to vote in every single election, down to School Board Seat 4 and Assistant Dog-Catcher, whether they like it or not.

The deterrent effect on California’s crime rate could be staggering.

Main image via Flickr/Heather Katsoulis

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