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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, December 31, 2004

Racial Disparity In Prisons and Voting

The Woodsman: A woman was on the tube recently extolling the importance of faith based programs that help fight drug abuse, those in trouble with the law, and so on because those who succeed add one more person to civic society. This film suggests we should care about even for those who cause us to shudder with disgust and fear, including child molesters who served their time (the prison part). I reckon some guys in the audience will wonder why such a person deserves the woman who believes in him here, even if she is played by the star's (Kevin Bacon) wife. The film in fact is filled with good performances from top down, even the small ones. It is a first film for the co-writer/director, and at times it shows in the story, but those characters bring you back.

Jalil Abdul Muntaqim, a black man incarcerated at Shawangunk Correctional Facility in Wallkill, N.Y., acknowledged that the law was not intentionally discriminatory. Instead, he argued that it had the practical effect of diluting black and Hispanic voter rolls because the racial disparity in New York's prison population is driven, in part, by discriminatory sentencing practices. ...

Muntaqim claimed that in New York, where blacks and Hispanics make up less than 30 percent of the voting age population but more than 80 percent of the prison population, the disenfranchisement law has the practical effect of resulting in the denial of the right to vote because of race. ...

The question presented in this case should not be confused with the more frequently debated question whether former felons should lose their right to vote for a time or even permanently. The issue presented here is whether New York Election Law § 5-106-which disenfranchises persons currently in prison or on parole -can be challenged under the Voting Rights Act. This presents a significantly narrower legal and policy issue.

It might be perhaps more striking if he was from Shawshank, but the numbers alone are eye catching: no matter why, it is unconscionable to continue a system in which the numbers are this disproportionate. It surely is the case that many of these inmates are there for serious crimes, putting aside the state's lousy drug laws, but it is society's duty to set up an environment where a quarter of the population makes up three quarters of the prison population. This is the ultimate issue here, not felony disenfranchisement overall, though lawsuits like this one attempt to address smaller matters that deal with the status quo.

The article cited refers to a federal case that has been accepted for en banc review, which led the writer of the original opinion to provide some remarks quoted in the last paragraph. The judge's opinion also noted that Muntaqim's lawsuit made certain broad claims that are somewhat more narrow than one that only claimed that those incarcerated have a right to vote (so held in only two states). Likewise, it ultimately is a statutory question: the original opinion held that federal voting rights legislation is just not clear enough on the issue to be used to interfere with state penal law in the way attempted here.

The broader question of the constitutional voting rights of the incarcerated or Congress' right to protect them is not at question. I'd add a few comments. First, in accord with my past writings on the subject, this should not be confused with the rights of felons once they leave prison -- the unfortunate wording of some discussions of the topic tends to mix them all together as if letting those out of jail for five years vote is akin to letting those in prison for murder vote for local officials in the community their prison is located. Second, I think a good case can be made that at least some individuals in prison (or jail) have a right to vote because conviction may not warrant lost of suffrage.

Third, in respect to the current lawsuit, racial inequality in the penal system can be said to violate voting rights as well. Though the Fourteenth Amendment does suggest a state can disenfranchise those convicted of a crime, the system might still be inequitable enough to violate the Constitution. After all, the Fifteenth Amendment came after the Fourteenth, so that alone suggests we cannot be limited to a brief mention of the matter in the Fourteenth.*


* In a never used provision, the Fourteenth Amendment allows the federal government to deprive states their representation in Congress in proportion to those denied the right to vote. It is in respect to this provision where that limitations in respect of age, sex, and those convicted of a crime (rebellion highlighted) is found. As noted by the Supreme Court itself, this provision cannot justify a discriminatory law that is intended to discriminate on account of race. Laws with a discriminatory effect also have been found to breach federal anti-discrimination statutes, including those that touch upon voting rights.

I'd add that the opinion in the case at hand suggests the unfortunate possibility of recent federalism cases to affect not only areas where Congress might not have clear power over (such as general state laws that affect religious freedom or the rights of the disabled state employees), but even those that they surely do (voting rights by race). This does not change because we are talking about prisoners here, and an upcoming decision involving religious rights of prisoners (and a federal law that deprives spending if they are deprived in certain instances) might just make this clear. I would not be surprised if the en banc court cites it in their opinion.