<x-charset utf-8> When I began this thread with the relatively narrow point that I opposed the conflation of enfranchisement for parolees with the enfranchisement of felons who have entirely served their terms, I expected it might provoke an interesting debate, but what has ensued certainly has surpassed my expectations. I have mostly stayed out of the discussion, though I have followed it with interest.
Mark Scarberry's posting this morning captures my own view almost exactly. I have only one quibble with what he says, and one point I would add. The quibble is that I do not see prudential concerns as "trumping" political and moral theory. I think Scarberry makes a very persuasive showing (building on Volokh's and others' points) that political and moral theory permit disfranchisement of felons. But he does not attempt to demonstrate--nor do I think he believes--that there is anything in political or moral theory that makes it impermissible or improper to reenfranchise felons (or even not to disfranchise them at all, as is the case in Maine, Vermont, and, by judicial diktat, Canada). So there is no occasion for prudence to "trump" anything.
The point that I would add is that I do not accept the premise of very much of this debate that those who favor disfranchisement of felons (for however long) need to provide a theoretical justification for doing so. There is a deep question here of how one approaches questions of political process. The usual assumption of legal academics--so pervasive that it is hardly recognized as an assumption--is that all important features of the political process must fit into a theoretically coherent structure that rests on one or a small number of abstract principles. This approach is inconsistent with a kind of "conservatism" that I think represents a much better approach. I use the quotes, because it is not conservative (or liberal) in the more common ideological sense.
There are many reasons for preferring this conservative approach. This is hardly the place for a thorough disquisition, nor am I by any means the best person to provide such a disquisition. But the reasons include: 1. The utter unreasonableness of supposing a pluralistic society run on principles other than dictatorship could possibly settle on such a theoretical system, even assuming that such a system is either possible or desirable; 2. My very strong skepticism that such a theoretical system would be possible, even if we had a philosopher-dictator; 3. My very strong skepticism that if such a theoretical system in fact could be devised by a philosopher-dictator, it would be tolerable or decent (cf. Plato's Republic); 4. The belief that all else being equal (or even moderately unequal), stability is better than change in the rules of the political system; 5. The belief that time-tested practices and institutions sometimes have merits that are hard to articulate or di!
scern, especially for theorists who observe the system from a distance; and 6. Even when the practices and institutions really do have little to be said for them, nevertheless over time individuals, groups, and other institutions adapt themselves, so that they may work tolerably well and changing them may have effects that are hard to foresee.
This is not at all intended as a general argument against change or reform. I have spent a good part of my career as a card-carrrying reformer and am not about to renounce that activity. But it is intended as an argument that abstract moral theoretical considerations should not often have much weight.
So far as felon disfranchisement is concerned, American practice runs the gamut from the Maine-Vermont approach of no disfranchisement at all to lifetime disfranchisement. I regard that entire spectrum as morally acceptable. Indeed, there are very few issues within the range of normal political debate on which I would presume to accuse those who disagree with me of pursuing immoral objectives. My own belief, as I said yesterday, is that felons should be reenfranchised as soon as they have completed serving their terms, including parole and probation.
Best,
Daniel Lowenstein
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Scarberry, Mark
Sent: Fri 2/11/2005 11:18 AM
To: election-law@majordomo.lls.edu
Cc:
Subject: RE: criminal disenfranchisement
It seems to me that, on prudential grounds, society should be reluctant to
disenfranchise felons for life or even for a very long period of time (more
than perhaps five years after completion of sentence). Whether or not such
disenfranchisement would be justified under political or moral theory, it is
likely to exacerbate the racial polarization of our society, with very
negative consequences. Such long term disenfranchisement, in my view, would
need to be justified by strong evidence that it is necessary to prevent even
worse negative consequences. I have not seen such evidence.
But that is a prudential argument. With regard to whether moral or political
theory could justify long term disenfranchisement -- that is, with regard to
whether felons have a moral or political entitlement to vote within some
reasonable period after completing their sentences -- I have an open mind.
There is force to the argument that those who refuse to conform their
conduct to the law should not have a role in making the law. In social
contract terms, a felony could be the equivalent of a material breach; one
who materially breaches a contract ordinarily loses the right to enforce the
contract and to benefit from it. One might also argue, however, that a
person should regain rights under a social contract after a breach, if the
person pays a substantial penalty for the breach and then adheres to the
terms of the contract over a substantial period of time. (I'm sure political
scientists have considered these matters in a much more sophisticated way.)
Finally, I have to disagree with the idea that there is nothing special
about a felony conviction as compared with other moral failings that one
might think should deprive a person of voting rights. First, criminal
convictions, including of course felony convictions, occur under the most
demanding standard of proof (beyond a reasonable doubt). We can't afford to
evaluate each person's fitness for voting under such a standard; the
hearings would never end. Second, society's choice to make an act a felony
is a determination that those who commit such acts deserve to lose their
liberty, at least for a substantial period of time, or in some cases their
lives. As a society, we determine that felony violations of the law are the
most reprehensible. It is not unreasonable to link the right to affect the
making of the law with the willingness to avoid the most reprehensible
violations of the law. That of course does not mean that society has in
every case acted wisely in determining what acts should be considered
felonies.
Again, my view is that prudential concerns trump moral and political theory.
In our present circumstances, we probably should not embrace long term
disenfranchisement of felons.
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: Bauer, Bob [mailto:RBauer@perkinscoie.com]
Sent: Friday, February 11, 2005 8:11 AM
To: 'Chambers, Henry'; Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
I am confused by the line of argument that Eugene is advancing, and I say
this as someone with less than fully developed views on the issue of felon
disenfranchisement. I agree with the post raising doubt about the meaning
of "bad for society", and wonder also what is meant by "moral judgment".
Some people with moral judgment perfectly suited for voting decisions commit
crimes, I would think. For example, an individual convicted of killing a
spouse or partner's lover in a fit of rage might be impassioned about fiscal
discipline, or well-versed in the issues presented by American relationships
to the rest of the world. What does the prior criminal act have to do with
the sort of judgment that we expect from a voter? Now someone might reply
that that judgment must be, at bottom, "moral" judgment, but then the
question is what sort of "moral" judgment, always a highly contestable
question, do we have in mind? How about the citizen who is not a felon, but
who is engaged in perpectual lawsuits over breached contracts, employment
discrimination and other unsavory business practices? Or the one who, also
exposed only to civil liability, habitually fails to pay debts and
obligations, and whose property is encumbered with liens? Why not establish
disqualification on that basis? That voter appeals to me much less--his or
her "judgment" is more suspect--than the ex-felon of my example.
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