I would suggest that you read paragraphs 34-36 more carefully. They provide substantial detail as to the admissions by all three branches of New Jersey government that racial profiling leads to greatly disproportionate investigation and arrest of minority citizens. Obviously these figures are limited to drivers of motor vehicles, since that is the only area where there is some concrete data. But Paragraphs 37-39 also provides figures on the disparate impact of the so-called war on drugs, which over 20 years vastly increased the percentage of minorities in New Jersey prisons. FRANK
Prof. Frank Askin
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687
"Volokh, Eugene" <VOLOKH@law.ucla.edu> 02/08/05 06:40PM >>>
These are plausible arguments -- but so, it seems to me, is the
position that a voter is one of our governors, and that we don't want to
be governed by those who have shown themselves to be bad actors.
This, incidentally, is an issue that supporters of the right to
bear arms have to face. According to most polls I've seen, most
Americans believe there is such a right. (See, e.g.,
http://abcnews.go.com/sections/us/DailyNews/guns_poll020514.html,
reporting that "After hearing the Second Amendment verbatim, 73 percent
in an ABCNEWS.com poll said it guarantees the right to individual gun
ownership," though most respondents supported quite a few regulations on
such a right.) Forty-four of the 50 state constitutions secure such a
right; it's pretty clearly not a states' right when it's in a state
constitution, and most of the provisions quite explicitly stress the
right's individual nature. The most recent one was enacted in Wisconsin
in 1998 (promoted by then-state-legislator Russ Feingold, I believe) by
a 74%-26% margin.
At the same time, many states ban convicted felons, even ones
who have finished their sentences, from possessing guns; and the federal
government enforces such bans until the state of conviction restores the
felon's civil rights. All state courts that have considered such bans
under state right to bear arms provisions have upheld them. The
underlying sense, it seems to me, is that while self-defense, including
armed self-defense, is an important individual right, it is a right that
we can allocate to the trustworthy and not those whose actions have led
us to doubt their trustworthiness.
Naturally, the rights are far from identical. The right to have
a gun may cause more immediate damage than the right to vote. On the
other hand, the right to have a gun may also be more important to the
rightsholder (because it can save his life) than the right to vote.
But the point remains: One can strongly believe that some right
is very important for citizens to have -- that it is fundamental to our
liberal democracy, even if others don't accept it -- but still conclude
that this right may properly be forfeited when a person's bad conduct
has demonstrated his untrustworthiness.
Of course, states may choose to restore the person's rights if
they believe that the person has been rehabilitated, and if they
generally have confidence in rehabilitation; I believe that many though
not all states in fact do restore felons' voting rights and firearms
rights on this theory. But once the person has forfeited this right --
even though it was a constitutionally secured right -- by his bad
conduct, restoration is a matter of grace, born out of our growing
willingness to trust the person, and not of constitutional entitlement.
Eugene
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Deborah
Goldberg
Sent: Tuesday, February 08, 2005 2:51 PM
To: Lowenstein, Daniel; election-law@majordomo.lls.edu
Subject: Re: NY Times and Felons
Those of us who believe that voting is a fundamental right in a
democracy believe that every mentally competent citizen of voting age
should have that right. In Maine, Vermont, and Puerto Rico, people in
prison vote. In many democracies outside of this country, people in
prison vote. As the Supreme Court of Israel stated in granting Yitzhak
Rabin's assassin the right to vote, we must "separate contempt for his
act from respect for his right." The South African Supreme Court put it
just as powerfully:
The universality of the franchise is important notonly for nationhood
and democracy. The vote of each and every citizen is a badge of dignity
and personhood. Quite literally, it says that everybody counts. In a
country of great disparities of wealth and power it declares that
whoever we are, whether rich or poor, exalted or disgraced, we all
belong to the same democratic . . . nation.
People on parole are being sent back to their communities, they are
paying taxes, they are role models for their children, they are expected
to become productive members of society, and they have a great deal at
stake in how they are governed. These seem to me factors that are
relevant to whether one has the right to vote. Disenfranchisement is
not part of a criminal sentence; the right to vote should not hang on
whether people with felony convictions have "paid their debt."
P.S. I have seen no evidence that parole boards are making partisan
decisions in releasing prisoners, but if they were, full enfranchisement
solves that problem too.
________________________
Deborah Goldberg
Director, Democracy Program
212-998-6748
deborah.goldberg@nyu.edu
Brennan Center for Justice
161 Avenue of the Americas
12th Floor
New York, NY 10013
tel: 212-998-6730
fax: 212-995-4550
www.brennancenter.org
"Lowenstein, Daniel" <lowenstein@law.ucla.edu> 02/08/05 03:19PM >>>
The NY Times editorial Rick referenced in his "news of the day"
message supports voting by felons who have completed their punishment
AND those on parole. I do not believe these categories should be
conflated. I favor reenfranchising those who have, as they say, "paid
their debt to society."
Felons who are still on parole have not "paid their debt," so
they do not seem to me to come within the rationale for
reenfranchisement. Giving the vote to parolees is also unjust and
imprudent. It is unjust because the difference between a parolee and an
inmate is the result of an administrative decision. I am certainly no
criminal law expert, but I suppose parole decisions are importantly
influenced by the expected risk of freeing the inmate and by the parole
board's assessment of what will facilitate rehabilitation. Also,
perhaps, the existence and need of supportive family, etc. These are
not necessarily criteria that determine who can vote.
The proposal is also imprudent. Parole boards could easily be
partisan and politically motivated. Indeed, the proposal would be
likely to politicize them. Yet the partisan desire to have more (or
fewer) convicted felons is surely not what should be driving parole
policy.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148