Felon Disenfranchisement Does Not Deter Criminal Behavior

HAYS DEBATE 1 Novice – Felons Ev Felons Index

Felons Index...... 1

Affirmative Extensions...... 2

Negative Extensions...... 11 HAYS DEBATE 2 Novice – Felons Ev Affirmative Extensions

Felon disenfranchisement does not deter criminal behavior.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

If there is no logical incompatibility between disenfranchisement and punishment, arguments against disenfranchisement as punishment must be practical rather than conceptual. Though it is compatible with just retribution, it is a futile form of retribution since most criminals do not even know that their crimes can result in loss of the right to vote and, given the young age at which most crimes are committed, most criminals probably do not care about voting at the time they commit their crimes. Consequently, I contend that disenfranchisement is not sensible punishment policy: it will not deter crime, nor will offenders see it as their just deserts. It is pointless as incapacitation, and it goes without saying that it serves no rehabilitative function.

Not all felons should be punished equally.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

The second argument holds that, by his act, the criminal puts himself in the state of nature or of war, and thus effectively denies the authority of the state. Ewald finds support for this in Locke's Second Treatise. He quotes Locke asserting that the criminal has "renounced reason, the common rule and measure God hath given to mankind ..., declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom men can have no society nor security." (54) Ewald fails to mention that the statement is only about murderers, not all criminals. (55) In the section immediately following the one in which the quoted words occur, Locke poses the question of whether "lesser breaches of [the] law" may be punished with death, and answers that "Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like." (56) Thus, those who commit lesser crimes than murder are to receive proportionately lesser penalties. So, while the quoted passage authorizes killing murderers and treating them as without rights, like a lion or a tiger, this does not apply to all .felons. I shall return to the special case of murderers shortly.

We do not deny criminals their other rights while in prison nor once released.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

That we do not regard criminals as losing all of their rights is shown in practice. When criminals are apprehended, they still have legal rights against certain forms of treatment, and they have the legal right to appeal to a judge to enforce those rights. It is not thought that all criminals may be killed like a lion or a tiger. Moreover, when they are imprisoned, they not only retain many of their rights, they also retain their legal duties. They are still subject to the criminal law in prison, and certainly after release from prison. Though criminals violate the social contract in committing crime, we do not thereby treat them as surrendering all the rights that they have under the contract. HAYS DEBATE 3 Novice – Felons Ev Many felons are victims of social injustice making society partially culpable for the felonies.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

But there is still more to be said against the contractarian argument for disenfranchisement. There is a critical dimension to the social contract. Because the social contract makes obligations conditional on receipt of benefits from the rest of society, the doctrine shows us a fact about criminal justice that criminal justice officials almost never acknowledge, namely that, as a form of justice, criminal justice is a two-way street. While criminal justice officials focus on the question of whether the criminal has fulfilled his obligation to society, they gloss over the correlative question of whether the society has fulfilled its obligations to the criminal. No doubt it would be hard, maybe impossible, to design a criminal justice system that would acknowledge the centrality of this question, but we are still entitled to acknowledge it. The social contract requires that we do. If obligations are conditioned on benefits, it follows that duties to obey the rules of criminal justice are conditioned on the justice of the society that those rules are meant to govern. I have less of an obligation to refrain from violence in a society that leaves me prey to violence. I have less of an obligation to respect property in a society that excludes me from the possibility of gaining my own property. Moreover, the obligations owed to one's fellow citizens are owed by each to all. Thus, if one person is the victim of injustice, there is at least someone else who is failing in his duty to that person. With this, we must face the implications of the fact that many of the people who find themselves convicted of felonies are victims of social injustice. The implications of this fact are two. First, many disadvantaged people who commit crimes are not violating their civic duties to the same extent as advantaged people who commit the same crimes would be, because injustice has weakened their civic duties. (63) Second, the law-abiding people who promote that injustice (for example, by discriminating on the basis of race), or benefit from it (for example, by earning more than they would if blacks were able to compete in the market without discrimination) but do not work to correct it, share some of the moral responsibility for those crimes.

Those who do not work for social justice are in no position to demand disenfranchisement.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

I do not want to be misunderstood here. I am not saying that the poor and black individuals who figure so prominently in crime statistics violated no moral obligation in committing their crimes. Those who have committed violence and theft usually have violated moral obligations because, among other reasons, their victims are almost always people in conditions similar to their own. Even the victims of injustice have obligations not to harm other victims of injustice. Being the victim of injustice is a mitigating, not an excusing factor. Though not eliminated, the moral responsibility of victims of injustice is lessened both because they receive less than their fair share of the benefits that are the basis of their duties, and because moral responsibility for their crimes is shared by those who benefit from injustice and do not work to correct it. As a result, those who benefit--and retain their voting rights--are in no position to demand that impoverished criminals give up theirs. HAYS DEBATE 4 Novice – Felons Ev Denying the right to vote turns citizens into subjects.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

To capture the way in which disenfranchisement is like slavery but not quite slavery, I shall characterize it as subjection. When sane adults are deprived of the right to vote they are subjected to those who can vote since the voters can impose rules of behavior on the nonvoters without consulting them, and those rules will be coercively enforced. This shows that the right to vote is a very special right. It is not simply one way in which a self-governing person might choose to govern himself, it is a central ingredient in self-government itself. To deny the right to vote is more like denying the right to speak than it is like, say, denying the right to drive. It reduces people from citizens to subjects.

When felons cannot vote, they are in a state of subjection.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

What is important here is not so much that voting gives me power to govern others, but that voting gives me as much power over them as they have over me. Rousseau states the logic of the case clearly: "each man, in giving himself to all, gives himself to nobody; and there is no associate over which he does not acquire the same right as he yields others over himself, he gains an equivalent for everything he loses." (71) Locke's contract is different than Rousseau's, chiefly in that Lockean individuals give up less to the state than Rousseauian ones, (72) but the logic is the same: a free person can be subject to political authority and remain free only if that political authority is his own in the same measure as he is subject to it. (73) With a right to vote, I own a fraction of the sovereign power equal to my fraction of the population subject to that sovereign power. Without a right to vote, I am subject only and not sovereign. Thus I am in subjection, like a slave.

Subjection is not compatible for those who have served their time.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

Subjection may be acceptable as punishment, which is normally a loss of self-governance, and thus, in varying degrees, a kind of state-imposed slavery. (74) But subjection is certainly not compatible with the status of those who--their punishment having been completed--are entitled to have their liberty restored. (75) To continue to deprive ex-felons of the right to vote is, to use Locke's words, to continue the state of war against them. Since a criminal who has served his punishment has paid his debt to society and has been restored to normal liberty, neither self- defense nor continued punishment is justified against him, and thus it is wrong to continue the state of war with him. For Locke, "reparation and restraint ... are the only two reasons why one man may lawfully do harm to another, which is what we call punishment." (76) It is, then, likewise wrong to keep a person who has completed his punishment in a condition like slavery. Consequently, according to the social contract, deprivation of the right to vote must stop when punishment is completed.

Other countries allow and encourage prisoners to vote. HAYS DEBATE 5 Novice – Felons Ev Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005 Among American states, only Maine and Vermont currently permit voting by prison inmates. However, this is widely practiced in other countries. Prisoners may vote in the Czech Republic, Denmark, France, Germany, Israel, Japan, Kenya, the Netherlands, Norway, Peru, Poland, Romania, Sweden, and Zimbabwe. German law requires that public officials make special efforts to facilitate and encourage voting by prisoners. Felons are less likely to respect their social obligations when denied their right to vote.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

I have already argued that depriving felons of the vote is not generally a sensible punishment policy. Here, I add that allowing, even encouraging, felons in prison and under supervision to vote would promote responsible engagement in society and have a rehabilitative effect. Silber writes of ex-felons, "It is in the interest of society at large that released prisoners embrace the social contract by recognizing their obligation to respect the rights of others. They are not as likely to respect their obligations under the contract if they are denied the correlative rights." (78) Silber's belief in the rehabilitative potential of political participation is shared by numerous other commentators. (79) But notice that, though Silber means this only for ex-felons, there is nothing in the claim that implies that it would not have the same effect on felons. This fact, coupled with the idea that disenfranchisement is not sensible punishment policy, is an argument for giving the vote to felons even while they are still in prison--with the possible infrequent exception of those who have shown themselves to be specially immoral.

Allowing felons to vote will be enlightening for society about ourselves and the roots of crime.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

For the educational benefits of allowing both felons and ex-felons into the democratic process, I turn to the work of Iris Marion Young. In Inclusion and Democracy, Young contends that differences (social, ethnic, racial, physical, etc.), rather than a hindrance to arriving at a democratic consensus, should be viewed as a resource. She writes, "Speaking across differences in a context of public accountability often reduces mutual ignorance about one another's values, intentions, and perceptions, and gives everyone the enlarged thought necessary to come to more reasonable and fairer solutions to problems." (80) What I want to draw from this is that enfranchising convicted felons will do something not only for them, but also for us. By inviting felons and ex-felons into the political discussion as full voting members, we will begin to learn just how normal most criminals are. We will learn more about our own society as aspects of it seen from offenders' standpoints come into our view. In particular, we will learn that our society confronts some people with a set of options in which crime is a more reasonable choice than it is in the set of options facing other, better-off people.

Allowing felons to vote will humanize them.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005 HAYS DEBATE 6 Novice – Felons Ev While Young emphasizes difference, I think that the importance of difference points to the importance of commonality. It is not just any difference--say, between the color of a white chair and of a black one--that merits our attention. The difference between a white and a black human being is of significance because this is a difference of and to humans. Differences between humans count because they are differences between creatures who share in common that their lives and fates matter deeply to them. Treating the differences between criminals and ourselves as a resource likewise points to our fundamental commonality with the criminals in our midst. HAYS DEBATE 7 Novice – Felons Ev Allowing felons to vote is necessary for society to truly examine justice.

Jeffrey Reiman, “Liberal and Republican Arguments against the Disenfranchisement of Felons,” Criminal Justice Ethics, 2005

If we think that felons are somehow irretrievably evil, fundamentally different from law-abiding people--a kind of caste or even a unique species--then all we can learn from them is how better to protect ourselves from them. But, there is more than that to learn from criminals. Similar to how branding dissidents insane in the former Soviet Union was a means to defuse challenges to the justice of the Soviet system, so too, the belief that those who deviate from our rules are wholly different from us normal law-abiding people is a shield against thinking about the justice of our society. To face the fact that the great majority of criminals are normal folks in bad straits, people like ourselves who found themselves in situations with little hope and opportunity for change, is to face up to the question of the justice of our society.

Across the US, what constitutes a felony is grossly inconsistent.

Elizabeth Hull, “Felons Deserve the Right to Vote: ‘Disenfranchisement Laws Not Only Are Unfair, They Are Undemocratic and Injurious. They Compromise the Country's Political Legitimacy and Its Moral Authority to Exact Obedience and Loyalty from Those It Presumes to Represent,’” USA Today, January 2004

Among the states, moreover, what constitutes a felony is neither logical nor consistent. In Maryland, for instance, criminals cannot vote for the rest of their lives if they are twice convicted of a felony (or what the state calls "infamous crimes"). Yet, many of the 149 offenses so categorized--such as inserting slugs into a slot machine or using a false identification card are regarded in other states as misdemeanors. Any Floridian who stops payment on a check of more than $150 with intent to defraud commits a felony; so does the teenager who is caught with an ounce of crock co caine, but the recreational user who is nabbed for cocaine (in powder form) possession is guilty of a misdemeanor.

No other country in the world permanently disenfranchises offenders.

Such wildly divergent policies defy the move toward "uniform national standards" that an election-reform commission, prompted by the Court's ruling in Bask v. Gore, urged upon the country. There is another. even more important reason why stripping voting rights from former inmates is objectionable: The policy creates what Human Rights Watch calls "a huge pool of political outcasts in America." The organization further indicates that it knows "of no other country in the world that permanently disenfranchises ex-offenders." Indeed, many other liberal, democratic nations, including Germany, France, and, most recently, South Africa, extend the franchise even to individuals still behind bars. Yet, in some regions of the U.S., as Florida State Sen. Delores Kelly observes, "If you write two bad checks over $500, you [could] lose your right in perpetuity to be a part of the body politic." HAYS DEBATE 8 Novice – Felons Ev Denying felons the right to vote deprives political power from minority communities.

According to U.S. government statistics, two-thirds of those imprisoned are members of racial and ethnic minorities. Not surprisingly, then, among those who are disenfranchised, 36% are African-American. The degree of restrictions affecting minorities varies among states. The Sentencing Project, a prisoner advocacy group based in Washington, D.C., reports thai one of every three adult black men is barred for life from voting in the state of Alabama, and, in another eight states, the figure is one in five. In 17 other states, anywhere from 10 to 25% of black men have lost their political suffrage. Given the number of African-American youth who are in prison, its much as 40% of black men will be denied the vote during some or all of their adult lives. This massive disenfranchisement is wreaking havoc on many minority communities by sapping political power from a group whose influence in legislative corridors already is slight.

Many laws meant to disenfranchise felons are specifically targeted at disempowering blacks.

Since some disenfranchisement laws were enacted as far back as the colonial period. their advocates insist they are nonracist in origin. Indeed, according to historian Malcolm McMillan, some early laws were not intended to handicap racial minorities (who could not vote in any case), but to dilute the strength of land-poor whites and "legally create a conservative electorate." Yet, as The League of Women Voters points out in a 2001 newslerter, many others "are anachronistic remnants of the hideous post-Civil War" Reconstruction period." The majority of disenfranchisement laws were enacted between 1865-70, along with poll taxes and literacy tests, to ensure white supremacy. As Sen. Crater Glass (D.Va., 1920-46) made clear, these measures were intended "to discriminate to the very extremity of permissible action under the limits of the Federal Constitution, with a view to the elimination of every Negro voter who can be gotten rid of legally, without materially impairing the numerical strength of the white electorate." Laws disempowering blacks were pivotal, historian Morgan Kousser explains, because they provided southern states with "insurance if courts struck down the more blatantly unconstitutional clauses." This insurance worked as intended. While the Supreme Court eventually banned literacy tests and poll taxes, it never has overturned the constitutionality of laws that deny political fights to former convicts. In their campaign to eviscerate blacks' voting strength, Reconstructionist Southerners also designated as felonies all sorts of offenses, such as "horse theft" or "public rowdiness," that racial minorities presumably were more likely to commit than whites. Miscegenation became a felony as well. As a consequence, for the next half-century, people could murder and rape without losing the franchise, but if they married someone of another race, they forfeited their voting rights into perpetuity. HAYS DEBATE 9 Novice – Felons Ev Politicians use disenfranchisement as a way of shaping the voting pool.

Even in the present era, according to Florida State Sen. Daryl Jones, "The state legislature attempts to classify more and more crimes as felonies [so it] can eliminate more people from the voter rolls." In 2000, Jones reports. the Republican legislature proposed a bill that would have increased from 365 to 366 days the jail sentence for anyone who cashes two welfare checks after gaining employment. What is the purpose of adding one more day? The offense then becomes a felony, and "You take one more person off the voter rolls.... It's been going on in Tallahassee for years."

Methods that allow felons to reacquire the right to vote are too cumbersome to work for most felons.

In many states, disenfranchised ex-convicts can petition for the reinstatement of their political rights--in theory. In reality, regaining the franchise is almost always a lengthy. tortuous, costly, demeaning, and frustrating endeavor. Elsewhere, former inmates must wait several years after their release before they can even seek the restoration of their political rights. In Nevada, it is 10 years; in Virginia, five (unless they were convicted on drug charges, in which case it is seven). In other states, one-time felons cannot regain their right to vote until they have paid a hefty application fee in Florida, as much as $1,000. In Alabama, the pardon-seeker must take a DNA test and notify the crime victim, and then seek and be granted a pardon from both the governor and a clemency panel (or, if the applicant has been in Federal prison, from the president of the U.S.). Predictably, few succeed. In Virginia, for instance, in 1996-97, 404 out of some 200,000 eligible were granted clemency. In 1999, one out of every 300 ex-convicts regained the vote in Florida--less than one-half of one percent of those eligible. (Among them was Charles Colson, who was incarcerated for his involvement in the 1972 Watergate scandal.)

Disenfranchisement laws do not achieve the social goals advocates claim.

Disenfranchisement laws, for all their inequities, remain widespread. Their proponents argue that they promote important social goals. For example, it is claimed that they further one or more of the traditional objectives of the criminal justice system: deterrence, restitution, rehabilitation, or punishment. Yet, denying voting privileges to former inmates scarcely furthers these legitimate objectives. There is no evidence it deters crime, and it strains credulity to assume would-be felons will refrain from burgling a store, say, or selling drugs lest they jeopardize their franchise. HAYS DEBATE 10 Novice – Felons Ev Denying the vote does not compensate crime victims, and certainly does nothing to promote the rehabilitation of people who have "paid their debt" to society. Disenfranchising a person, sometimes for life, does indeed constitute punishment. Yet, besides the fact such a policy seems mindlessly punitive, whom is it harming? Not those hardened offenders who could not care less about voting. Instead, it hurts those ex-convicts who, upon serving their time, live a law-abiding life and participate in civil society. HAYS DEBATE 11 Novice – Felons Ev Disenfranchisement does not make sense with most criminal actions.

No less a conservative than James Q. Wilson, who ranks among the country's foremost criminologists, concedes that a "perpetual loss of the right to vote serves no practical or philosophical purpose." Even if disenfranchisement laws did serve some legitimate law enforcement objective, them is no correspondance between the punishment and the crime. Confiscating the license of someone convicted of drunk driving is just. So does forbidding a scum artist from working in a bank. However, prohibiting an embezzler or arsonist from ever casting a ballot makes as much sense as forbidding a stock swindler from coaching Little League.

Allowing felons to vote will not corrupt the voting process.

Those supporting disenfranchisement laws defend them on another ground as well: Such laws are necessary, they maintain, because exprisoners as a class are likely to corrupt the electoral process. Those living in sparsely populated regions could determine the outcome of close elections, particularly in jurisdictions where the populace directly elects judges, law enforcement officials, and district attorneys. Law-and-order sheriffs might not be reelected if every former inmate they had sent away resolved to vote for their opponents. Lawbreakers might collude to steal properly, but it is hard to believe they would join together to steal ballots. Such an allegation assumes that, upon their release, they will plunge headlong into the political arena to bribe candidates or otherwise rig the outcome. Virtually every study on voting behavior indicates that most lawbreakers are marginalized and politically apathetic--the least inclined sector to vote. In Massachusetts, for instance. only 25% of those entering prison had voted previously, and, in Utah, less than five percent even had registered.

States that allow felons to vote do not experience any increase in corruption of the voting process.

Neither is there any substantiation that formet prisoners corrupt the political process. Indeed, the 20 slates that allow them to vote experience no more election-related corruption than the 30 that do not. Even if corruption is a genuine concern, there are more appropriate ways to safeguard the integrity of the electoral process. Why not just strip the franchise from those few miscreants whose offenses affected the casting or counting of ballots? HAYS DEBATE 12 Novice – Felons Ev If competence and moral character were the standard for voting, this would likely disenfranchise many more than just felons.

Yet, if "competence" and "good moral character" were prerequisites, the number of individuals eligible to vote surely would plummet. Purists, for example, might exclude the 60% of Americans who, when polled, could not name the vice-president, along with anyone else who ever has received a speeding ticket or voted on the basis of blatant self-interest. Predicating eligibility on either "competence" or "moral worth," most importantly, would undermine the very foundation of democratic government, which is premised on, dedicated to, and legitimated by the principle that voting should be a near-universal right. Why? Because, as economist and philosopher John Stuart Mill explained in an 1861 essay, every adult citizen knows best what is in his or her interest: "Men, as well as women, do not need political tights in order that they may govern, but in order that they not be misgoverned."

Disenfranchisement laws are undemocratic and unjust.

Is it fair to deny suffrage to people who have completed their prison terms? As Columbia University law professor George Fletcher observes, "The idea that you would pay the debt and be treated as a debtor (felon) forever verges on the macabre." Is it not a principle basic to Judeo- Christian ethics, and indeed a tenet underlying this country's criminal justice system, that individuals can atone for their sins and he redeemed? Disenfranchisement laws not only are unfair; they are undemocratic and injurious. They compromise the country's political legitimacy and its moral authority to exact obedience and loyalty from those it presumes to represent. They weaken the body politic by fostering an outlaw caste, heavily weighted with racial and ethnic minorities who already are ill-equipped to assume productive lives in American society. Why compound their disabilities by telling them they are unfit to exercise the privileges of citizenship? HAYS DEBATE 13 Novice – Felons Ev Negative Extensions

Courts have rules that denying felons the right to vote does not violate equal protection laws.

BILL MCCOLLUM, “Felons don't merit automatic rights,” St. Petersburg Times, April 2, 2007

As a matter of justice, respect for crime victims and public safety, Florida takes away the rights of convicted felons to vote, sit on a jury, or engage in a state-licensed occupation. Felons lose these rights unless Cabinet members, sitting as the Clemency Board, agree to restore them. The 11th U.S. Circuit Court of Appeals upheld Florida's law in 2005, finding it does not violate the U.S. Constitution's equal protection clause or the Voting Rights Act. The federal court stated: "It is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment"

Affirming would not allow society to gauge if the felon is rehabilitated.

BILL MCCOLLUM, “Felons don't merit automatic rights,” St. Petersburg Times, April 2, 2007

The proposal to automatically restore civil rights when leaving prison would restore rights without providing a reasonable period of time to determine if felons are truly rehabilitated or still leading a life of crime. It would include felons who committed heinous offenses such as child pornography, kidnapping and luring a child, armed robbery, carjacking and home invasion, aggravated stalking, aggravated assault, and even battery on a police officer. Furthermore, the proposal would include drug traffickers who are some of society's most dangerous felons often entangled in gang violence and, worst of all, would include offenders who continually plague our society - habitual violent career criminals.

Affirming means more than just restoring voting rights.

BILL MCCOLLUM, “Felons don't merit automatic rights,” St. Petersburg Times, April 2, 2007

This proposal to automatically restore civil rights to felons would give repeat offenders the same vote at the ballot box as law-abiding citizens. Felons convicted of major crimes would be eligible to sit on a jury to carry out our system of justice. Violent criminals would be able to acquire a state-licensed job, whether as a household pest exterminator, residential building contractor or alarm system installer, allowing felons to regularly access people's homes.

Congress lacks the authority to prohibit felon disenfranchisement.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

The procedural issue is resolved for the most part by the Constitution itself, in Article I, section 2, which says that electors for the House of Representatives—and, by extension, for all federal elections—“shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Thus, it gives authority for determining elector qualifications to the states. The exception is, of course, where the Constitution itself forbids the exclusion of voters on specific grounds, such as race (the 15th Amendment), sex (the 19th Amendment), failure to a poll tax or other tax (24th Amendment), or age for those 18 years old or older (26th HAYS DEBATE 14 Novice – Felons Ev Amendment). Nonetheless, some members of Congress have recently proposed legislation that would make it illegal for states to bar felons from voting. This is a dramatic change, because most states do not allow at least some of these people to vote. The Supreme Court recently reaffirmed in United States v. Lopez (1995) what is obvious from the text of the Constitution: “The Constitution creates a Federal Government of enumerated powers.” And no power exists for Congress to pass a law banning felon disenfranchisement by the states. HAYS DEBATE 15 Novice – Felons Ev Laws that have a discriminatory effect do not necessarily violate the 14th or 15th Amendment.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

If Article I, Section 4, does not give Congress the power to trump the states’ authority for determining voting qualifications, then we are left with the claim that Congress may pass such legislation under its authority to enforce the 14th and 15th Amendments. In particular, it is claimed that, because a disproportionate number of felons are African Americans, therefore Congress can pass a ban on felon disenfranchisement as part of its authority to enforce the 14th and 15th Amendments prohibitions of racial discrimination. The trouble here is that it is well established that laws which have a mere “disproportionate effect” or “disparate impact” on the basis of race—but no discriminatory intent—do not violate the 14th and 15th Amendments. When in 1985 the Supreme Court considered a claim that a state law denying the franchise to those convicted of crimes “involving moral turpitude” was unconstitutional race discrimination, it said: “`[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. … Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause.’”

Felon disenfranchisement is not rooted in discriminatory intent.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

It is true that the Supreme Court has upheld congressional bans on certain voting practices and procedures—like literacy tests—that are not themselves discriminatory on their face but have disproportionately excluded racial minorities from voting. But, as the Court later stressed, these cases involved bans aimed at practices that historically have been rooted in intentional discrimination. The disenfranchisement of criminals, on the other hand, has no such roots. Indeed, Section 2 of the 14th Amendment itself contemplates this disenfranchisement, since it acknowledges that “the right to vote” may be “abridged … for participation in rebellion, or other crime ….” Surely this is some evidence that the reasons for disenfranchising criminals need not be racially discriminatory. The Supreme Court upheld a felon disenfranchisement statute from a nonracial Equal Protection Clause challenge in Richardson v. Ramirez (1974), relying on Section 2.

Barring felons from voting is not the heritage of our racist past.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

The fact that an overwhelming number of states have passed such disenfranchisement laws also indicates that something other than racial discrimination is indeed the motive. Rather, as even the Sentencing Project and the Human Rights Watch—vigorous opponents of felon disenfranchisement—acknowledge, “Disenfranchisement in the U.S. is a heritage from ancient Greek and Roman traditions carried into Europe.” In Europe, the civil disabilities attached to conviction for a felony were severe, and “English colonists brought these concepts with them to North America.” Thus: • Only two New England states—Maine and Vermont—allow all felons to vote. HAYS DEBATE 16 Novice – Felons Ev • Twenty-eight states prohibit felons who are on probation from voting. • Thirty-two states prohibit felons who are on parole from voting. • The states that prohibit felons who have served their complete sentences from voting are hardly the old Confederacy: Only five of the thirteen states fall in that category. • Conversely, of the old Confederacy, Texas, Arkansas, Louisiana, North Carolina, South Carolina, Tennessee, and Georgia all allow some felons to vote. HAYS DEBATE 17 Novice – Felons Ev States that attempted to discriminate through barring felons from voting have changed their laws.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

It is true that, between 1890 and 1910, five Southern states (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) tailored their criminal disenfranchisement laws to increase their effect on black citizens. But these states have all changed their laws to one degree or another.

We can restore voting rights for felons on a case by case basis.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center This doesn't mean that someone who, for instance, wrote a bad check 50 years ago shouldn't have his or her right to vote restored. But those decisions should be made on a case-by-case basis.

Barring felons from voting sends a message about how seriously society takes criminal behavior.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

Those who want to give felons the right to vote argue that after prison, the criminal's debt to society has been paid. But many leading activists, such as the Sentencing Project, want the right restored even for those still in prison. Society should not ignore people's criminal records, even after a sentence has been served. We don't allow felons to carry firearms or serve on federal juries. Barring felons from voting is one way society sends the message that committing a serious crime has serious consequences.

Minorities have the most to lose if we affirm.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

Others support felon re-enfranchisement because a disproportionate number of felons are black. But calculations of racial winners and losers should not influence lawmaking. If a voting qualification makes sense, then we should let the chips fall where they may, even if some groups (men, for example, or African-Americans) are statistically more likely to be affected. Besides, since law-abiding African-Americans are more frequently the victims of crime and live disproportionately in areas with high felon populations, they have the most to lose if their voting rights are unfairly diluted by allowing criminals to vote.

Those unwilling to follow the law ought not have a say in making the law.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

People who are not willing to follow the law should not be allowed to make the law for everyone HAYS DEBATE 18 Novice – Felons Ev else. When you vote, you make law, either directly or indirectly. Someone who has committed a serious crime against society -- the definition of a felon -- should not be given this power over the rest of us. HAYS DEBATE 19 Novice – Felons Ev Barring felons from voting effects felons regardless of race.

David Lampo, “Felon Voters A Growing Movements,” National Review, May 2, 2002

Instead of confronting the fact that a grossly disproportionate amount of crime is committed by black men, however, certain black leaders have turned it around and used it as yet another example of supposed institutionalized white racism, with some actually comparing the loss of voting rights for felons to poll taxes and Jim Crow voting restrictions in the old South. Typical of this line of reasoning is Marc Mauer, assistant director of the Sentencing Project, a liberal policy group in Washington, D.C. "Fifty years after the beginning of the civil rights movement," he writes, "it is tragic that every day more black citizens lose their voting rights. This is not just a criminal-justice issue, but one of basic democracy." Of course, he conveniently forgot to add that any convicted felon, white, or black, loses the right to vote in those states that forbid it. One would think that those who actually suffered at the hands of Jim Crow would consider it a moral obscenity to be compared to murderers and rapists, but the silence is deafening.

It does not make sense to deny felons the right to run their own lives but give them a say in ours.

ROGER CLEGG, GEORGE T. CONWAY III & KENNETH K. LEE, " THE BULLET AND THE BALLOT? THE CASE FOR FELON DISENFRANCHISEMENT STATUTES,” JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Vol. 14: 1

That same reasoning motivated Massachusetts then-governor Paul Celluci in 2000 to support a ballot initiative stripping incarcerated felons of the right to vote after prisoners began to organize a political action committee.132 A Massachusetts state legislative leader commented about the State’s now-abolished practice of allowing incarcerated felons to vote: “It makes no sense. We incarcerate people and we take away their right to run their own lives and leave them with the ability to influence how we run our lives?”133

Felons are less reliable than law abiding citizens.

ROGER CLEGG, GEORGE T. CONWAY III & KENNETH K. LEE, " THE BULLET AND THE BALLOT? THE CASE FOR FELON DISENFRANCHISEMENT STATUTES,” JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Vol. 14: 1

Third, society considers convicts, even those who have completed their prison terms, to be less trustworthy than non-convicted citizens.136 In other areas of the law, full rights and privileges are not always restored to convicts, even though they may have “paid their debt to society.”137 For example, federal law prohibits the possession of a firearm for anyone indicted for or convicted of a felony punishable by at least one year in prison.138 Also under federal law, anyone who has a “charge pending” or has been convicted of a crime punishable by imprisonment for one year or more cannot serve on a jury.139 So if someone who has a “charge pending” against him is deemed incapable of sitting in judgment of the fate of a single litigant, it hardly seems unreasonable to say that someone convicted of a felony cannot help shape the fate of a city, a state, or the entire nation. Even outside the realm of civic rights and privileges, society recognizes that an ex-convict may be less reliable than others. For example, employers routinely ask prospective employees whether they have been arrested (let alone convicted of a felony) because they suspect that the mere fact of an arrest may be an indication of untrustworthiness. HAYS DEBATE 20 Novice – Felons Ev The disproportionate effect felon disenfranchisement has on race does not justify abandoning the policy.

ROGER CLEGG, GEORGE T. CONWAY III & KENNETH K. LEE, " THE BULLET AND THE BALLOT? THE CASE FOR FELON DISENFRANCHISEMENT STATUTES,” JOURNAL OF GENDER, SOCIAL POLICY & THE LAW, Vol. 14: 1

Critics of felon disenfranchisement laws note that these laws have a disproportionate impact on certain racial minority groups.140 While society can be sensitive to such concerns, it is not a sufficient reason to abolish longstanding and justifiable laws in the attempt to achieve some form of racial balance. As W.E.B. DuBois once wrote, “Draw lines of crime, of incompetency, of vice, as tightly and uncompromisingly as you will, for these things must be proscribed; but a color-line not only does not accomplish this purpose, but thwarts it.”141 In fact, the abolition of felon disenfranchisement laws may have the unintended effect of creating “anti-law enforcement” voting blocs and victimizing the vast majority of law-abiding minority citizens who live in high-crime urban areas.142 Ultimately the real solution is to deter and prevent the crimes from being committed, not to create loopholes and exceptions for punishments.

People who do not obey the law ought not to have a say in making it.

Roger Clegg, “Answering the Challenges to Felon Disenfranchisement,” Center for Equal Opportunity, 8/27/2006

Because you don’t have a right to make the laws if you aren’t willing to follow them yourself. To participate in self-government, you must be willing to accept the rule of law. We don’t let everyone vote--not children, not noncitizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, loyalty, and responsibility, and those who have committed serious crimes against their fellow citizens don’t meet those standards.

Felons have not necessarily paid their debt to society.

Roger Clegg, “Answering the Challenges to Felon Disenfranchisement,” Center for Equal Opportunity, 8/27/2006

They’ve paid enough of their debt to be allowed out of prison, but that doesn’t mean there aren’t continuing consequences. We don’t let felons possess firearms or serve on juries, for instance. By the way, most of the groups that want felons to be able to vote want them to be able to vote when they are still in prison, so this “paid their debt to society” argument is a red herring.

Disenfranchisement does not lead to more crime.

Roger Clegg, “Answering the Challenges to Felon Disenfranchisement,” Center for Equal Opportunity, 8/27/2006

Two out of three felons who are released from prison commit another crime, but it is ridiculous to assert that the reason they do so is that they can’t vote. If a felon shows that he or she really has turned over a new leaf and is no longer a threat to the community but is giving something back to it, there should be a formal ceremony that restores the right to vote to that individual. But it should not be done automatically. HAYS DEBATE 21 Novice – Felons Ev It is not unreasonable to presume that criminals are less likely to be good citizens.

Roger Clegg, “Felon Disenfranchisement Is Constitutional, And Justified,” National Constitution Center

Voting is a right, but it is also a privilege. Not everyone in the United States may vote. As a general matter, only those who have reached a certain age, are mentally competent, and are American citizens, are allowed to vote. This is because we do not want people voting who are not trustworthy and loyal to our republic. It is not unreasonable to suppose that those who have committed serious crimes may be presumed to lack this trustworthiness and loyalty. Criminals are, in the aggregate, less likely to be trustworthy, good citizens.

Racism is not to blame for the effects of felon disenfranchisement.

Edward Feser, “Should Felons Vote?” City Journal, Spring 2005

The most frequently heard charge is that disenfranchising felons is racist because the felon population is disproportionately black. But the mere fact that blacks make up a lopsided percentage of the nation’s prison population doesn’t prove that racism is to blame. Is the mostly male population of the prisons evidence of reverse sexism? Of course not: men commit the vast majority of serious crimes—a fact no one would dispute—and that’s why there are lots more of them than women behind bars. Regrettably, blacks also commit a disproportionate number of felonies, as victim surveys show. In any case, a felon either deserves his punishment or not, whatever his race. If he does, it may also be that he deserves disenfranchisement. His race, in both cases, is irrelevant.

Felon disenfranchisement is not rooted in racism.

Edward Feser, “Should Felons Vote?” City Journal, Spring 2005

But look where the laws preventing felons from voting arose, the advocates say: in bigoted post– Civil War legislatures, keen to keep newly emancipated blacks away from the ballot box. These laws are utterly racist in origin, like poll taxes and literacy tests. But this argument fails on two counts. First, as legal writer Roger Clegg notes, many of the same studies appealed to by felon advocates show that the policy of disenfranchising felons is as old as ancient Greece and Rome; it made its way to these shores not long after the American Revolution. By the time of the Civil War, 70 percent of the states already had such laws.

Even if felon disenfranchisement had racist origins does not mean it is a bad idea.

Edward Feser, “Should Felons Vote?” City Journal, Spring 2005

Second, even if felon disenfranchisement did have a disreputable origin, it wouldn’t follow that the policy is bad. To think otherwise would be to commit what logicians call the genetic fallacy. Say Abraham Lincoln drafted the Emancipation Proclamation purely for cynical political reasons, or to exact vengeance on rebellious Southern plantation owners, or just to get rid of some unneeded scratch paper. It would be silly to suggest that therefore freeing the slaves wasn’t a good thing. HAYS DEBATE 22 Novice – Felons Ev Felon disenfranchisement does not equal punishing someone twice.

Edward Feser, “Should Felons Vote?” City Journal, Spring 2005

Felon advocates also argue that to prevent felons from voting, especially after their release from prison, unfairly punishes them twice for the same crime. On this view, the ex-con pays his debt to society by doing time and should suffer no further punishment. But this begs the question at issue: should a felon lose his vote as well as spend time behind bars? Few people would say that the drunk driver sentenced by a judge to lose his driver’s license and to pay a hefty fine is punished twice. Most would agree that, given the crime, this one punishment with two components is perfectly apt. Similarly, those who support disenfranchising felons do not believe in punishing criminals twice for the same misdeed; they believe in punishing them once, with the penalty including both jail time and the loss of the vote. A punishment of incarceration without disenfranchisement, they plausibly maintain, would be too lenient.

The right to vote is not inalienable.

Edward Feser, “Should Felons Vote?” City Journal, Spring 2005

The claim that disenfranchising felons is wrong because the right to vote is basic and inalienable—another common argument of the advocates—is no more convincing. Obviously, the right is not basic and inalienable in any legal sense, since the laws banning murderers, thieves, and other wrongdoers from voting have stood for a long time. Nor is the right basic and inalienable in a moral sense. Even John Locke, the English philosopher generally regarded as having the greatest influence on the American founding, didn’t view the franchise in that light. True, Locke believed that all human beings had certain rights by nature (such as rights to life, liberty, and property), that government existed to protect those rights, and that any legitimate government had to rest on the tacit consent of the people. But the government that the people consented to did not need to be democratic, in Locke’s view—it might even be monarchical. As long as it protected the basic rights of citizens and retained their loyalty, it remained legitimate, whether or not it allowed its citizens to vote.