Attorney Lev quoted on felon voting rights

Attorney Dmitry Lev was quoted in the Nashville Scene in a news editorial on voting rights of felons entitled Dead Men Voting.

“The history behind disenfranchisement in the United States was closely tied to racial motives and attempts to prevent newly freed slaves from taking part in the political process,” says Dmitry Lev, an attorney who has researched felon disenfranchisement. “Minorities still face a heavy disparate impact resulting from disenfranchisement laws, as statistically there is a greater number of minority felons.”

The article was written by Willian Dean Hinton and published in the August 24, 2006, edition.

The issue raised in the story, and one on which I expand here, is the inconsistency in the restrictions on convicted felons’ ability to vote among states. Any restriction on felon voting (“disenfranchisement”) is problematic because it is a state measure and its implementation and reach vary greatly among states. Thus, felons convicted of identical crimes in different states may have opposite outcomes on their ability to vote in the next election, whether federal or state. The opposite extremes are the states of Florida and Maine: in the former, convicted felons lose their ability to vote for life, while in the latter felons can vote while still imprisoned. Other states track everywhere in between.

Aside from having an obvious impact on the voting rights of minorities, disenfranchisement does not satisfy any of the four commonly recognized purposes behind punishing criminals: incapacity, rehabilitation, restitution, or deterrence. By analogy, certain felons are prohibited from buying guns because society perceives them as dangerous. Therefore, society imposes a narrow (and arguably not very effective) incapacity on that felon by restricting his right to freely purchase a gun. So too, by taking away a felon’s right to vote, society sends a message that the felon is dangerous to the political process and to democracy because he may have a say in electing politicians more inclined to support the felon’s causes. In other words, exercising the most fundamental right in a representative government structure becomes a threat if the causes turn unpopular.

It must also be noted that crimes come in two varieties: malum prohibitum and malum in se. The former is literally “wrong because prohibited” while the latter is “wrong in itself.” A large percentage of felons have been convicted of malum prohibitum crimes: various small drug offenses. These crimes are essentially victimless, do not infringe on the rights of others, do not cause pain, suffering, or death of those around. To classify these in the same category as felons who were convicted of malum in se crimes (murder, robbery, rape, kidnapping, etc) is clearly wrong, and to impose the same life long ban from the political process on both groups of felons is outright suspicious considering that malum prohibitum crimes are mostly political fruits. It is also interesting to note that malum prohibitum acts are generally criminalized by the political right, while the political left would be the clear winner if disenfranchisement laws were to be repealed.