Deprivation of Voting Rights as a Collateral Consequence of a Felony Conviction

The U.S. Commission on Civil Rights is right to be concerned about the excessive number of collateral consequences attending a felony conviction, but its implicit suggestion that the deprivation of voting rights is the one most urgently in need of reform is … well … quirky at best.

|The Volokh Conspiracy |

The U.S. Commission on Civil Rights issued a report on the collateral consequences of a felony conviction several weeks ago. Its members are against 'em. And to some degree, so should we all be. There are too many collateral consequences to a felony conviction these days. Examples include laws that prevent ex-offenders from engaging in certain professions and rules that make it difficult or impossible for ex-offenders to live in public housing.

On the other hand, the Commission appears curiously naïve about the reasons behind some of these collateral consequences. They seem to think they are just gratuitous efforts to kick people who are already down. But high rates of recidivism are a fact. According to Bureau of Justice statistics, "Five in 6 (83%) of state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release." The average number of re-arrests is five. Some collateral consequences are genuinely useful in protecting the public.

For example, few would argue against laws that forbid those who have been convicted of the sexual abuse of a young child from working in a day care center. And maybe it's not such a bad idea to invest in more halfway houses for recently released prisoners instead of immediately putting them in unsupervised public housing, where some ex-offenders will likely put innocent residents in greater danger.

Even so, there have to be limits. Some collateral consequences seem to be nothing more than the work of a special interest seeking to squelch competition. In West Virginia, for example, "waxing specialists" and "shampoo assistants" must demonstrate "good moral character" to a government board. Maybe it's just me, but I like rather like shampoo assistants "with a past."

My Commissioner Statement (along with Commissioner Peter Kirsanow) urges a bit more effort to assess collateral consequences on a case-by-case basis.

What struck me most about the Commission's report was its emphasis on laws that deny felons the vote. The report purports to be about how collateral consequences make it too difficult for ex-offenders to re-integrate and hence increase the likelihood of recidivism. And yet it devotes more pages to the deprivation of voting rights than to any other kind of consequence. And it uses by far the report's most florid language to describe it, arguing that "denying this right to even a 'subset of the population' jeopardizes democracy for the entire population," and that "the right to vote is the 'essence of a democratic society, and any restrictions on that right strike at the heart of representative government." [Italics added.]

Curiously, this is the one collateral consequence that is unlikely to prevent re-integration. If one doesn't have a job or a place to live, it is easy to see how one might be lured back into crime. Not being able to vote isn't in that category at all.

Alas, it is a little hard to imagine that the Commission's Progressive majority would have been as focused on voting if they had not been quite so convinced that ex-offenders tend to vote for left-of-center candidates. (Ditto for the lack of enthusiasm shown by Republican state legislators.)

If useful reform is going to happen, it makes sense to focus elsewhere.