The Weekly Sift

Something important happened in Virginia this week: Governor Terry McAuliffe restored voting rights to Virginia felons who have served their time and completed the subsequent probations. In the age of mass incarceration, that’s a lot of people: more than 200,000 in Virginia alone. Nationally, an estimated 5.85 million people have lost their voting rights because of felony convictions. That’s bigger than the winning margin in every recent presidential election other than 2008.

But the question that probably leaps to mind is: Why would changing that be a good thing? The class of felons includes a lot of bad people, so why do we want more bad people picking our leaders? But felon voting rights are important for both micro and macro reasons.

The individual ex-con. The micro-level reason is that we want an ex-con to have a path back into normal life. (John Oliver did a great segment on this a few months ago. The ex-con’s difficulty re-entering society also made it into pop culture through the recent hit movie Ant-Man.) The old-fashioned notion was that by the time a prisoner got released, he had “paid his debt to society” and everything was square now. But in reality, many ex-cons can only hope for a second-class citizenship, which permanent disenfranchisement symbolizes. And if you can never hope for a normal life, returning to crime becomes more tempting.

Decades ago, you might start over by taking the Jean Valjean approach: Move far away and keep quiet about your criminal history. But in this era of universal databases, the relentless Inspector Javert has been automated: Your past is bound to catch up with you.

Large-scale voter suppression. The macro-level reason is that our criminal justice system is biased, so disenfranchising felons is a way to diminish the voting power of blacks, the poor, and other over-policed segments of society.

The racial difference might be defended if it were solely the result of blacks committing more crimes than whites, but that’s far from the whole story. An ACLU report says:

[R]acial disparities result from disparate treatment of Blacks at every stage of the criminal justice system, including stops and searches, arrests, prosecutions and plea negotiations, trials, and sentencing. Race matters at all phases and aspects of the criminal process, including the quality of representation, the charging phase, and the availability of plea agreements, each of which impact whether juvenile and adult defendants face a potential [life without parole] sentence. In addition, racial disparities in sentencing can result from theoretically “race neutral” sentencing policies that have significant disparate racial effects, particularly in the cases of habitual offender laws and many drug policies, including mandatory minimums, school zone drug enhancements, and federal policies adopted by Congress in 1986 and 1996 that at the time established a 100-to-one sentencing disparity between crack and powder cocaine offenses.

Racial disparities in sentencing also result in part from prosecutors’ decisions at the initial charging stage, suggesting that racial bias affects the exercise of prosecutorial discretion with respect to certain crimes. One study found that Black defendants face significantly more severe charges than whites, even after controlling for characteristics of the offense, criminal history, defense counsel type, age and education of the offender, and crime rates and economic characteristics of the jurisdiction.

Governor McAuliffe invoked the racial issue by comparing felon disenfranchisement to the poll tax, but I think a better comparison is to another Jim Crow relic: literacy tests. The literacy test had a similarly virtuous rationale: Do you want illiterate people picking our leaders? But it was applied in biased ways, and combined with other systemic discrimination (i.e., separate-and-unequal school systems) to keep blacks from voting.

Partisan politics. As so often happens these days, what ought to be a simple good-government argument has gotten swamped by partisan power politics. Blacks overwhelmingly vote Democratic, so Republicans are against anything that enfranchises more of them. (This has the cycle-completing effect of motivating more blacks to vote Democratic.) And so, Kentucky’s Democratic Governor Steven Beshear issued a similar order as he was leaving office, but the incoming Republican Governor Matt Bevin rescinded it before it could take effect. Felon disenfranchisement effects about 1 in 19 Kentuckians, but 1 in 6 blacks.

As Mike Dukakis learned when he became the Willie Horton candidate in 1988, felons (especially black ones) make for bad political optics. And that puts governors on the horns of a dilemma: Like Gov. Besmear, they can wait until they’re leaving office to restore voting rights, when critics can claim that they didn’t dare do it until they were slinking out the door. Or, like Gov. McAuliffe, they can restore rights earlier in their terms, and face the criticism that they are trying to remake their own electorate.

Optics or partisanship aside, though, it’s the right thing to do. We’ll have a hard time tackling the racial biases in our justice system as long as they continue to give one side an advantage on election day.