I don't understand the theory of the revision here. I asked in the comments last time for more realism and clearer statement of the social situation. But the revisions make slight effort in that direction. We do not live in a society that regards rehabilitation as a goal of criminal justice. We imprison in order to incapacitate on a very wide scale, intentionally. We are holding a large number of young men, overwhelmingly poor, undereducated, underemployed, disproportionately from disfavored ethnic communities, who would otherwise be in the street, challenging our ability to maintain social stability. Our "stability maintenance" policy requires us to spend a larger proportion of our social surplus on imprisoning young men with little to lose than any other society on earth. Of course we also disfranchise them and put significant obstacles in the way of their recovering democracy. The point of the system is that it maintains social stability by discouraging what Aristotle called "democracy": rule by the poor.

Yet the essay counterfactually assumes that we are socially committed to rehabilitation, and that Equal Protection doctrine can be immensely expanded in its power, reversing the rule in Washington v. Davis, merely by referring to the central order-keeping policy of our oligarchy as "racism." This is not reality. Nor would it be sufficient to say we "ought" to be a democracy ruled by the poor, that we "ought" to send more Black men to college than to prison, that we "ought" to redistribute wealth so that 1% of the population no longer owns 40% of everything, and so on.

One route here is to describe the situation accurately, without proposing anything. Another is to propose politically feasible minor ameliorative changes, showing how they can be brought about in the actual political environment we have. A third is to describe a solution to the problem: a method for accomplishing democracy, that is, rule by the poor, despite the "stability maintenance" system of the current oligarchy. Unfortunately, that would be socialism, so it's not allowed.

"Have been empowered" sounds as though this is somehow a recent development. "Are granted" might remove the erroneous implication. "Necessarily possess" might be even more accurate.

This leads to the injection of personal bias, beliefs, and stereotypes into the policing process. The war on drugs exacerbates this prejudice as it almost exclusively targets low-income communities of racial minorities. Once charged, the accused are very rarely provided with meaningful legal representation,

You are here apparently asserting that the public defense system that provides appointed counsel to all persons charged with felonies "very rarely provide[s] meaningful legal representation." What's the evidence?

thus their cases usually don’t go to trial. Instead, these minorities are threatened with severe mandatory sentences, and are usually pressured into plea bargain deals.

Plea bargains dispose of roughly 90% of all felony charges in New York City, which is pretty much the same rate that prevailed in 1770 and at most intervening points where we have published measurements. What is your real point about plea bargaining? Surely not that the primary source of guilty pleas is innocent people pressured into accepting felony convictions?

Secondly, various Supreme Court decisions have severely disabled the power of courts to consider claims of racial discrimination. This has been accomplished by finding statistical evidence of bias and discrimination inadmissible. Instead, courts require an unreasonably high standard of proof in discrimination cases which is usually impossible to obtain.

I don't understand this statement. Where statutes provide the cause of action, are you saying the Court misread the statutes? In which cases? If the point is that the Court should not require proof of intentional discrimination under the Equal Protection Clause when it alone provides the cause of action, what's your argument about why not? Assertion is plainly not enough here.

In Farrakhan v. Gregoire (2011), the Ninth Circuit initially ruled that Washington State’s felon disfranchisement law was in clear violation of the federal Voting Rights Act, which prohibits states from using any voting qualification that results in a denial of the right to vote on account of race. The court found “compelling” evidence of racial discrimination in Washington State’s criminal justice system at every level, in turn causing the disproportionate denial of the right to vote to racial minorities. This proved to be short-lived. On October 7, 2010, the court, sitting en banc, reversed the earlier decision and ruled 11-0 that Washington’s felon disenfranchisement law did not violate the Voting Rights Act.

The unanimous result of the en banc suggests that the Circuit as a whole disagreed strongly with the panel's result, which is indeed hard to square with Washington v.Davis

The opinion cited that to bring a valid claim, the plaintiffs must “at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”

Perhaps it would be simpler to say that we no longer engage in any effort to rehabilitate people who have been punished for serious crime. Without significant, persistent effort, rehabilitation fails even when it is tried. When it is not tried, it does not occur spontaneously very often, and recidivism is the modal outcome.

Once again, the difference is the extent of evidence of intent. The adoption of section 2 of the Fourteenth Amendment surprised Massachusetts, which disfranchised a higher proportion of its citizens (for felony, including repeated conviction for public intoxication) than some parts of the former Confederacy did for reasons of race control. To presume all this activity is colorblind in theory and white supremacist in fact is to get far ahead of the current and historical evidence.

As was true in the past, today most felons won't put themselves through these requirements, preferring instead to avoid attention rather than risk the loss of welfare or other badly needed services.

This appears to mean that we should return to a criminal justice system based around rehabilitation rather than retribution. It's easy for me to agree, but it's also evidently politically impossible. So what is the essay's central idea?

Felony Disenfranchisement: Just, Unjust, or Just Plain Racist?

-- By CalebGreig - 16 Feb 2012

Introduction

Nationwide, more than 5 million Americans who have been convicted of a felony are denied the right to vote. Maine and Vermont are the only U.S. states that do not restrict voting on the basis of a felony conviction, and even allow inmates to vote from prison by absentee ballot. Furthermore, the U.S. legal system denies felons various types of welfare. This results in a form of social disenfranchisement and isolation which is often the catalyst prompting a felon to resort back to crime.

African-Americans (and to a lesser extent Hispanics) make up a disproportionately high number of the disenfranchised. According to the NAACP Legal Defense Fund, a staggering 13% of all African-American men in this country are disfranchised, and in some states up to one-third of the entire African-American male population is denied the right to vote. As a result of this exclusion, the political power of African-American and Latino communities is weakened. Despite studies that show Americans of different races using illegal drugs quantitatively on a similar scale, in some states black men have been admitted to prisons on drug charges at the rate twenty to fifty times that of white men.

So Why the Disproportion?

As Michelle Alexander explains in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, this discriminatory system operates in two major stages. Firstly, law enforcement officers have been empowered with extraordinary discretion when deciding whom to investigate, pull over, arrest, and ultimately charge. This leads to the injection of personal bias, beliefs, and stereotypes into the policing process. The war on drugs exacerbates this prejudice as it almost exclusively targets low-income communities of racial minorities. Once charged, the accused are very rarely provided with meaningful legal representation, thus their cases usually don’t go to trial. Instead, these minorities are threatened with severe mandatory sentences, and are usually pressured into plea bargain deals. Secondly, various Supreme Court decisions have severely disabled the power of courts to consider claims of racial discrimination. This has been accomplished by finding statistical evidence of bias and discrimination inadmissible. Instead, courts require an unreasonably high standard of proof in discrimination cases which is usually impossible to obtain.

In Farrakhan v. Gregoire (2011), the Ninth Circuit initially ruled that Washington State’s felon disfranchisement law was in clear violation of the federal Voting Rights Act, which prohibits states from using any voting qualification that results in a denial of the right to vote on account of race. The court found “compelling” evidence of racial discrimination in Washington State’s criminal justice system at every level, in turn causing the disproportionate denial of the right to vote to racial minorities. This proved to be short-lived. On October 7, 2010, the court, sitting en banc, reversed the earlier decision and ruled 11-0 that Washington’s felon disenfranchisement law did not violate the Voting Rights Act. The opinion cited that to bring a valid claim, the plaintiffs must “at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.”

Disenfranchisement

Social Disenfranchisement

Felons released from prison are subjected to many forms of social discrimination which often result in a lifetime of limitations and community exclusion. One common difficulty encountered is finding a place to live. Not only are felons ineligible for public housing assistance for at least five years, housing authorities have developed their own screening and exclusion criteria, which sometimes can exclude someone based on an arrest (despite it not being followed by any further legal action). Another common policy requires the termination of any tenant whose household members engage in drug-related or other criminal activity, even if the violation took place not on the tenant's premises and without his or her knowledge. This was affirmed by the Supreme Court’s decision in Department of Housing and Urban Development v. Rucker (2002) and its implications have made many households and families reluctant to allow relatives, especially those recently released from prison, to stay with them.

Once released from prison, felons face the uphill battle of finding employment. In fact, most states require ex-convicts to “maintain gainful employment” as a condition of their parole. However, employers discriminate on the basis of past convictions and previous arrests (even if no charges were filed). The former convict's job landing attempt therefore usually ends when the employer becomes aware of the felony, as many employers will not hire people with criminal records. Thus, a kind of “catch-22” situation emerges. Additionally, newly released prisoners are slapped with a variety of legal fees and monetary penalties. The burden of these fees, or not being able to pay them, will push the felon back toward the prison system. This situation mirrors that of a debtor’s prison or the practice of share-cropping witnessed during the reconstruction era.

Political Disenfranchisement

Forty-eight states prohibit incarcerated felons from voting. Most extend the denial of this right to those on parole and some continue vote prohibition policies for years (even for life). In the states that allow it, to become re-enfranchised, felons must navigate bureaucratic obstacles and pay excessive fees. Alexander characterizes these “colorblind” rules as being the modern equivalent of the poll taxes and literacy tests—both kept a group from being able to vote. As was true in the past, today most felons won't put themselves through these requirements, preferring instead to avoid attention rather than risk the loss of welfare or other badly needed services.

Conclusion

Reforming welfare laws and easing restrictions on assistance programs will protect and promote the reintegration of felons into society. This social enfranchisement will curtail the number of felons returning to prison, consequently decreasing the number of Blacks and Latinos behind bars—an integral step in combating this apparently unassailable racism.

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