Let (Some) Criminals Vote

At The Atlantic, Patrick Appel writes a quick appeal to America to "let criminals vote." He makes a solid argument. Disenfranchisement raises concerns about racism and the abuse of civil rights for partisan political gain. It's a foolish way to go about punishment if we're at all interested in rehabilitation:

[I]t's hard to see how implementing a form of civic death helps former inmates reintegrate into society. Even if one grants that certain morally challenged offenders—murderers, say—do not belong in the voting booth, surely we could have judges determine who is fit to vote on a case-by-case basis, rather than excluding all criminals in the blanket laws of state constitutions.

Unfortunately, Appel overstates his case. What standard would those judges use to determine which criminals deserve to be enfranchised? Appel doesn't answer that question, probably because answering it would drain rhetorical force from his writing. ("Let Criminals Vote" becomes "Don't Let Criminal X Vote. Do Let Criminal Y Vote.") Describing such a standard would mean writing at length about the classes of wrongdoers who surely don't deserve the right to vote, and he wants to write about the classes who do. Even when he's acknowledging that some disenfranchisement is just, he only does so in a hypothetical: "If one grants…"

The real problem with the criminal justice system is not that it disenfranchises criminals, but that it disenfranchises too many criminals. As long as Appel believes that "citizens should be denied basic rights only when a clear threat is posed to the public good," the burden of proof should rest on the government to prove that a criminal or class of criminals doesn't deserve suffrage. As it stands, the system defaults on stripping so many criminals of the franchise that it risks punishing minor crimes disproportionately.

There are probably good arguments for disenfranchising lots of criminals. Appel doesn't dwell on that fact (though I think he knows it). Giving up the conceit that we should enfranchise all criminals is a good first step toward developing fair standards that could enfranchise most of them.