Subject: Re: NY Times and Felons
From: Steven Mulroy
Date: 2/9/2005, 9:34 AM
CC: election-law@majordomo.lls.edu

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Some comments in reply to Eugene Volokh's (interesting, useful) points about felon disenfranchisement:

Isn't it the case that anyone who satisfies the requirements for federal elected office set out in the Constitution can be elected, and that we can't exclude convicted felons who otherwise qualify?   It seems odd that a convicted felon would have a constitutional right to literally be one of our "governors" by being elected to federal office, but excluded from being a more indirect, metaphorical "governor" by voting in the same election in which he runs for office.  I know that the same situation applies to many state offices:  there are historical examples of people running for office from jail, even serving from jail, are there not?
Also, following up on Eugene's analogy to the 2nd Amendment, what about the 1st Amendment? Would we say that ex-felons are disqualified from writing their congressmen, petitioning their government for redress of grievances, making campaign contributions, serving as elected delegates to their party's convention, or otherwise participating in the "government" of the people? I don't think we COULD say it, could we?

I think the answer to all these questions is that all citizens have a right to contribute to the government of the people regardless of their criminal past.  Taking away 1st Am, 2nd Am, voting rights, or other rights isn't justified absent some compelling interest, and no criminological or penological interest is served by doing it.  Except possibly for where the ex-felon committed a crime with a gun or was otherwise dangerous, I don't see an argument for taking away the 2nd Am right either.  Criminal laws are probably too broad right now on that score.  Similarly, except possibly for crimes involving election fraud, I don't see an argument for taking away voting rights.
(Indeed, it might actually be salutary to have ex-felons' input re: public policy questions on prison conditions, the criminal justice system, or even the wisdom of substantive criminal laws.  I for one would like to hear from them re: the sentencing disparity between powder cocaine and crack.)


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