When Should Punishment End?

The push to allow felons to vote is more about gaining Democratic voters than rehabilitating people.

Bernie Sanders, the Brooklyn socialist who represents Vermont in the Senate, has called for extending voting rights to prisoners currently incarcerated — all of them, he says, meaning: Terry Nichols, Dzhokhar Tsarnaev, Nidal Hasan, sundry Aryan Brotherhood bosses, a blanket immunity that presumably would have covered the late Charles Manson before he went off to his eternal reward.

As a matter of political calculation, the Democrats probably are less interested in supermax-cloistered terrorists than in African Americans, who were more than twice as likely to vote Democrat as white voters in 2018 (90 percent vs. 44 percent) and who are about five times as likely to be incarcerated at some point in their lives. One study puts the number of black men convicted of a felony at 33 percent, a genuinely shocking figure, and there is evidence that African Americans also are more likely to be wrongly convicted.

Startling as these figures are, it is not obvious why the restoration of convicted felons’ voting rights is a good idea at all, much less something that should be at the top of the agenda. We exclude felons from voting for much the same reason that we generally exclude them from practicing law: We do not trust them with that power because of the contempt for the law they have demonstrated.

When challenged on felon voting, Democrats ask rhetorically: “Why should these men and women continue to be punished after they have served their time?” It is an unserious question asked by unserious people. If we were serious about completely restoring the civil and social status of felons after release, then we would, among other things, allow them to buy and keep guns, to serve in security-sensitive positions, to be protected from exclusion in professional licensure and discrimination in hiring, etc. None of that is talked about very much — the discussion mostly begins and ends at voting rights. Cynical, but predictable.

But we should be talking about some of those other things.

We have a general social interest in maximizing the rehabilitation of criminals, and if the humane reasons for doing so are not sufficiently persuasive, consider the costs involved, both direct costs for police and penal work, and indirect economic costs.

Sometimes, those costs are bitterly comical: In 2017, Los Angeles County spent $3.9 million to collect $3.4 million in “administrative fees” — these are distinct from fines and restitution — from released felons, who often leave prison deep in debt for administrative fees ranging from court costs to rent on ankle monitors, which can be shockingly expensive. Those being released are presented with overwhelming and inscrutable bills. Government is a hungry beast, and many states dedicate those funds to specific programs. For example, Virginia applies a fixed formula to divide felons’ fees between the general fund, a special forensic-science fund, a fund for court reporters, courthouse maintenance, training programs, something called the Intensified Drug Enforcement Jurisdiction Fund, and a fund controlled by the commonwealth’s attorney.

This presents an obvious opportunity for reform, and a relatively easy one. As Courtney E. Martin reports in the New York Times, several California counties — San Francisco, Alameda, and Contra Costa, with Los Angeles expected to follow — have stopped assessing such fees and have forgiven some debts associated with them. Like Los Angeles County, San Francisco has found it difficult to actually collect these fees: About 17 percent of what is assessed is actually paid. And what is paid often is being paid by the wives, girlfriends, and family of felons, who find it difficult to get decent work.

But even the relatively small collections amount to millions of dollars that somebody somewhere in some bureaucracy is counting on — which means that there will be resistance.

We hear a lot of talk about “violent felons” as distinct from nonviolent ones, because there are a lot of things, some of them ridiculous, that can make one a felon. For example, under 18 USC § 228, the failure to make court-ordered child-support payments can be a federal felony offense, if the payments are more than two years past due or amount to more than $10,000. People who are ordered to make child-support payments should make them, but those who fail to are not really in the same class of people as Terry Nichols or Nidal Hasan, or a murderer of the more common type. It may be that we need a third general classification of criminal offense, something that denotes a crime more serious than a misdemeanor (which might be anything from reckless driving to assault) but short of the sort of thing we really do want to see met with a lifelong social disability.

There are many convicted criminals who can be rehabilitated, and we should want to see them rehabilitated, which is almost impossible to achieve if they are economically handicapped for the rest of their postcarceral lives. The criminal-justice system should, to the extent that we can arrange it, forgo creating criminal incentives of its own, for instance by piling on financial burdens even as it forecloses most avenues for meeting them.

Here is a prediction: You’re going to hear a lot more from Democrats in 2020 about forgiving student-loan debt for upwardly mobile young people, who vote in substantial numbers and who make considerable political contributions. When it comes to felons, you’ll hear about very little other than getting them on the voting rolls.

But there is more to these people than their votes, and more to human flourishing than maximizing the headcount of Mayor Catherine Pugh’s political party.