Fun With Circular Arguments

I had an interesting little conversation today with a classmate who was tired of hearing about how ex-felons should have the right to vote. Why shouldn't they, I asked. Because, they're felons, said she. Hmm. So, ex-felons should be disenfranchised because...they're ex-felons. There's really no way to counter that argument, other than to point out it's inherent circularity. But this brings me to the issue of whether it's right or just to disenfranchise felons. Now I am not necessarily in favor of allowing incarcerated prisoners the vote, though I haven't considered that proposition in depth, but I see no reason for stripping people who have paid their debt to society of such a fundamental right.

Oh wait, voting is not a right. The wonderfully cogent and undoubtedly fair case of Bush v. Gore established that. This is the first hurdle for anyone arguing that felons should be able to vote. It is telling, though, how shocked most people are to find out that they don't have a Constitutional right to vote. Technically, it's a State-granted privilege. In my opinion, the right to vote precedes the Constitution, much in the same way the right to freedom of expression or gun ownership does. The Framers' were reluctant to include a universal suffrage amendment because they needed to placate the wealthy landowners who could potentially cause a rejection of the Constitution. Plus, they didn't like women and slaves. The right to vote, though, is so obviously fundamental to both the preservation of the republic and the self-actualization of its citizens, that it boggles the mind to conclude that voting is merely a privilege. It also leads to absurd consequences, to wit: if voting is merely a privilege, does that mean a State can arbitrarily decide that it will no longer hold elections for offices? In other words, couldn't a State simply revoke all of it's citizens voting privileges, except for perhaps, those already in office? Clearly a State could not do this and pass Constitutional muster. But what this highlights is the simple fact that voting is already treated like a right. Why not just go ahead and title it appropriately?

Anyway, back to the prisoners. Now, assuming that voting is a right does not necessarily lead us to ex-felon enfranchisement, because all rights are subject to reasonable regulation - you can't yell fire in a crowded theater, the government can search a person without a warrant if certain exigent circumstances exist, etc. But what reasonable arguments are there for denying ex-felons the right to vote?

The basic argument, which is what I think my friend was trying to elucidate, is one of pure retributive justice. Someone who committed a felony should be punished for breaking the social contract. They don't deserve to vote. Or something like, they showed that they make bad decisions and thus we cannot trust them to make good decisions when voting. The amount of paternalism that lies in these arguments is astounding. Plenty of people who aren't felons make bad decisions. I'm an expert in that field. Yet, I'm allowed to vote...scary thought. Let's also look at this retributive scheme a little more closely. Does the purported punishment have any bearing to the committed crime? Punishment meted out must be proportional and reasonably related to the crime. Disenfranchisement does not satisfy this requirement. Someone who, on one single occasion, sells two ounces of cocaine and spends five years in prison, made a bad decision indeed. But is taking away his right to vote proportional to the crime? For a clearer example, consider that violent felons, once released from prison, are barred from owning a gun. This is certainly proportionate - handing a gun to a person who has proved themselves violent in the past is a bad idea. But what would that same person do (or in other terms, who would that same person endanger) with the right to vote? What are we so afraid of, that they'll vote Democrat?

Let's also consider that retribution is not the only pillar of justice. What about the oft-ignored notion of rehabilitation. The first point here would be that, once a felon has done his time, he has paid his debt to society and his rights should be restored (within reason). Second, how can an ex-felon ever hope to be rehabilitated or feel like a normal citizen after incarceration if the State strips him of such a fundamental right? Disenfranchising ex-felons actually inhibits the possibility of rehabilitation and readjustment.

Finally, let's talk about deterrence. Punishments can be considered fair if they are likely to have a deterrent effect on anyone poised to commit the crime for which the punishment is handed out. But common sense dictates that the last thing on a person's mind, seconds before the felonious act, is "Oh God, I could lose my right to vote in the next election!" The deterrent effect of disenfranchisement is likely nil.

Let's move away from punishment as merely vengeance. I hope that one day we can take the idea of fair punishment as rehabilitation seriously. To arbitrarily deem ex-felons as incapable of voting, or to simply forcibly disenfranchise them ought to be a serious Constitutional problem. It should, at the very least, levy a large burden on those seeking to justify such actions. Instead, we continue to pretend that voting is a "privilege." Until we see a shift in that terminology, I'm afraid we won't ever stop stigmatizing those who have paid their debt to society.

~JSK

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First off I agree with you on the circular argument point. I also tend to agree with the idea that once one has served one's time, that his or her voting right whould be restored. However, it is possible that losing the right to vote after being let out can be part of the punishment in principal if it were designed that way. Just as punishment often has stages like jail time to probation after release, therfore there could be a period where voting rights are suspended. I'm not necessarily advocating for this, but that it could be justified in principal.

However, I also realize that this is not the structure or the argument that states who have this process argue for in having this policy. The reality is that the politics over this issue on both sides usually has less to do with any higher argument, but rather who gains politically. In Rhode Island, when this issue was on the ballot in 2006, all of the Democrats in the state all of a sudden had a huge moral conviction on why this should be allowed while the Republicans were stedfast against it. Why? Because fellons tend to be poorer and more concentrated in minorities whom overwhelmingly vote ofor one party. I would argue that States that generally don't allow ex-fellons to vote are largely because the politcal forces that would be hurt be allowing them have been able to hold power over this issue.

-EJB


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So yeah, I mean we can just quickly take care of the first part of your response by pointing to the limits of the Eighth Amendment. Someone who committed a minor felony like 3rd degree battery (essentially a fist fight in most states) or minor drug charges could not be forced to permanently give up a right. Even the right of ex-felons to own guns is being challenged (with some success) in courts these days. And also, like I said, the punishment must be proportionate. I just can't see how a judge could logically tie in voting rights with violent felonies.

And I generally agree with your second explanation, except that you're entirely too non-partisan about it. In every state it is Democrats who are fighting for prisoners voting rights. Like I said in my post, it's likely that this may be a political move because ex-cons do tend to vote Dem, but it's also pretty clear that there is a large pro-civil rights movement within the Dem party that is not linked to pure political capital. I would disagree with your "reality" that these problems have more to do with politics than basic human rights. We may live in a society that is so disillusioned with our politicians that it may simply seem like every move is a political one, motivated by personal gain - but I personally know many of the students here at Fordham who are working on the briefs of the prisoners' cases. They are not politically motivated, but are urged on by an inner moral belief that it is the right thing to do. These are the people who truly energize the prisoner's rights campaign and I hope one day we can move beyond the simple political aspects of the issue.


~JSK