by Goldy, 03/29/2006, 11:17 PM

Secretary of State Sam Reed has decided to appeal a King County Superior Court ruling that the state’s felon re-enfranchisement laws unconstitutionally violate the equal protection clause of the 14th amendment.

Hmm. I am disappointed, and not just because I think it is the wrong decision, but because I’d hoped that Reed might be a bit more pragmatic.

In announcing his decision, Reed made a joint statement with Attorney General Rob McKenna.

“We believe a rational basis does exist for the Legislature to deny felons the right to vote until they have completed their entire court-ordered sentences, including payment of criminal penalties, victim’s restitution, and legal fees, rather than separating out various sentencing aspects,”

Maybe, maybe not. I’m not saying that Judge Spearman’s decision is a slam dunk, but it is very compelling. The practical impact of our re-enfranchisment statutes is that we have created two classes of ex-felons: those who can afford to pay off their legal financial obligations, and those who cannot. The former have their voting rights restored, the latter are banned from voting for life.

Personally, I find this morally objectionable, but it is also a distinction that has proven to be extremely troublesome and expensive to administer and enforce… a fact that Reed himself acknowledged in the midst of last year’s controversial election contest.

In Washington, Secretary of State Reed said, the simplest way to fix confusion over tracking felons would be to automatically restore voting rights when people are released from prison, regardless of whether they’ve paid all their court debts.

And yet, given the opportunity to simplify our state’s re-enfranchisement system by adopting the model used in most other states, Reed has instead chosen to spend tax dollars defending a system that is costing taxpayers millions of dollars… and with uneven results.

But there is another practical consideration that is rarely discussed.

More than 250,000 ex-felons are currently ineligible to vote in WA state, about 3.7 percent of the state’s population, and 24 percent of African American men. About 46,000 of these ex-felons would have their voting rights restored if Judge Spearman’s decision is upheld.

So… exactly what is the social benefit of denying a substantial portion of our population the right to vote?

I’ve heard opponents of re-enfranchisement passionately argue that if we fully restore the civil rights of felons upon release they would have no incentive to make restitution to their victims. But in fact, the majority of the LFOs have nothing to do restitution.

For example, one of the plaintiffs in the case, Beverly DuBois, was convicted on a marijuana charge, and was ordered to pay LFOs totaling $1,620: a $500 victim assessment fee, $110 in court costs, and $1,000 to the Stevens County Drug Enforcement Fund. Unable to work due to injuries sustained in a car accident, DuBois has nonetheless made regular payments of $10 a month since her release… a court approved payment plan that doesn’t even cover the accrued interest. Since she was convicted in 2002, her outstanding LFO has actually increased to $1,895.69, and under current law, she will never be eligible to vote again.

Reed now argues that there is a “rational basis” for denying DuBois the right to vote, but I fail to see it. A permanently disabled woman gets ensnared on a marijuana charge, serves her time in prison, but due to onerous court fees she can never afford to pay off, she permanently loses the right to vote. Meanwhile, a more affluent ex-felon convicted of a similar crime, pays off his fines and has the franchise restored.

Perhaps a higher court will ultimately rule that a system that re-enfranchises ex-felons based on their ability to pay is somehow constitutional. But it certainly isn’t fair, and it does absolutely nothing to integrate these people back into society.

46 Responses to “Reed to appeal felon re-enfranchisement ruling”

1. vikkilee spews:

The Democrats have had plenty of times that they had enough of the legislature and the governorship that they could have eliminated these fines long ago and then this discussion would be pretty much water under the bridge. But, nooooo–they just could not bring themselves to think of poorer people. And, by the way, the courts do not really want to be bothered with restitution issues as as they tend to let the notion of collecting their own fine money for their own get in the way of trying to see that someone has their property restored in some fashion. This pro-fascist state treats poor people pretty ugly.

2. HAD ENOUGH YET? spews:

Sadly, your opinion about “constitutional authority” does not apply. Rather, its the opinion of the nine justices appointed to rule in Richardson v. Ramirez, 418 U.S. 24 (1974) – the same court appointees who ruled in Roe v. Wade. So is it the Burger court that you object to?

3. headless lucy spews:

re 43: I said “constitutional authority” — not what some bought and paid for kangaroo court said. Can’t you fucking read?

4. HAD ENOUGH YET? spews:

headless lucy @ 42,
to be fair, that’s not actually correct.
As it presently stands there is well established precedent in state and federal law granting the states the right to disenfranchise felons upon conviction.
What’s at issue in the instant case is the state’s right to set up a system of re-enfranchising felons which grants a disparate privledge to those with greater means to repay civil administrative monetary judgements. Judge Spearman was careful to note the relevant caselaw supporting the state’s right to disenfranchise felons in his ruling, which would otherwise bind his rulings. Where Judge Spearman found the state’s case wanting was instead in the specific system the state has contrived for re-enfranchising felons who have completed their custodial sentences. In Judge Spearman’s opinion the state has not shown a rational basis for contriving a system which restores the franchise to some immediately upon release, while denying it to others effectively for life based solely on their ability to pay.

Under our state’s constitution the state can treat offenders differently so long as the process is fair and rational. Fair in the sense that all offenders are handled in the same way procedurally (not one system for one class and another system for another class). And rational in the sense that whatever other differences in treatment exist, they are put in place for rational reasons that support some public interest. For example the state has a rational basis for granting some discretion in charging to prosecutors and some discretion in sentencing to judges. That results in sentences that weigh more heavily on some offenders than others – even when their criminal acts are substantially the same. That may not seem “fair” but its “just” in the sense that the state employs that system equally in rational pursuit of public interest.

The question here remains: What rational public interest is the state pursuing by denying restoration of citizenship based on poverty?

5. headless lucy spews:

re 40: The larger point is that you don’t have the constitutional authority to remove a felons right to vote any more than you have a constitutional authority to ban abortions.

Nitwit!

6. HAD ENOUGH YET? spews:

soundcrossing @ 40
Even though weve agreed that LFO’s are not fines, and even though the courts, the legislature, and the Reagan admin. advisors who first pushed for victim’s compensation never regarded LFO’s as “punishment” let’s go ahead and take that up.

What’s a fair monetary punishment for you and me, and what’s a fair punishment for Bill Gates or Mike McGavick may not be the same thing – at least not if punishment is your aim. While an LFO of $100,000 would put me over a barrel, it would barely faze Mr. McGavick. Most routine monetary fines have little impact on those with great wealth, while they weigh most heavily on the poor. So what? As you might say, don’t do the crime if you can’t pay the fine. But you must admit, there is a practical reason that we don’t rely on monetary fines to deter or correct serious crime. I suspect that you would share my discomfort at the prospect of a system that applied fines for serious crimes like assault or murder – since it implies at least somewhat of a license for the wealthy to buy the occaisional murder for example. So would you have some kind of sliding scale based on ability to pay? Well guess what? If that were the case – if that were the case – Judge Spearman would never have handed down his ruling, and its unlikely that the plaintiffs would have even brought the suit.
But of course all this is purely academic, since LFO’s are not fines and are not considered part of a felon’s “punishment”. And you will not see the AG’s office making an arguement on appeal to suggest that LFO’s are part of a felon’s “punishment”.

7. soundcrossing spews:

Idiots all. What the hell is the point of a penalty if it’s not enforced? Do any of you have children? Punsih them in any way, shape, or form? Wait, you’re liberals so no punishment. But you get what I’m saying. Take away a piece of the punishment and you take away the bite of the punishment. Punishment sucks. It sucks for felons not to be able to vote. Allow them to vote before they’ve completed their entire sentence and you take some of the bite out of their punishment.

There are times when you liberals have to show some nuts and backbone. This is one of those times.

8. HAD ENOUGH YET? spews:

middleoftheroader @ 19,
The closest reading I can give Judge Spearman’s ruling would indicate that he was applying a rational basis standard, not heightened scrutiny of wealth, as you propose. On appeal, no doubt the state will be arguing rational basis. But once again its worth noting that the state failed to avail itself of the opportunity to make such an argument before the Superior Court. And to borrow Goldy’s phrase, it won’t be a slam dunk for the state on appeal either.
Remember that the state’s burden is not to show the rational basis for disenfranchising felons. That’s well established and provided for in the state’s constitution. Instead they must show a rational basis for re-enfranchising felons based on the ability to pay. Not willingness to pay, but ability to pay.
If heightened scrutiny has been applied here, it has been applied by the state not by Judge Spearman. And it is just that heightened scrutiny that the judge finds wanting. The court is ordering the state to stop scrutinizing felons on the basis of ability to pay.
Felons who are unwilling to pay their LFOs should be returned to jail. But Sam Reed really should have walked away from this one. To prevail in this case sets an awful precedent that won’t go away soon. And I wouldn’t want to be the Assistant AG assigned the task of developing the state’s rational basis for making a special class out of poor people. That’s one heck of a slippery slope.

9. Seventy2002 spews:

Persons who can’t, or won’t, pay the fines imposed upon a misdemeanor conviction end up “sitting it out.”

Apply the same process to convicted felons. They can pay or stay in the joint, with $25 from their fines for each day they’re there.

At this rate Beverly DuBois would have been off the hook in 65 days. At her present rate of payment, $10 a month, she’s just screwing the taxpayers; it’s gotta cost more than than that to process the paperwork involved.

10. headless lucy spews:

re 36: In Richard Poop’s world, it’s never a beutiful day in the neighborhood. Mostly because Richard Poop is there.

11. Cougar spews:

Lucy @ 28, he kind of reminds me more of Mr. Rogers.

12. Cougar spews:

JCH @~15, DeLay would never think of pushing anyone in their chest, he is better at ‘stabbing them in the back’! With his devout Holy Roller beliefs…he would never lie, steal, cheat, abscond, swear, indulge or covet. LMAO

13. Roger Rabbit spews:

Rossi-voting county

14. KlakeSucksDick spews:

Word has it that Dickless Cheney has no friends at MySpace!

15. Roger Rabbit spews:

27

klake, what’s your point about crime in New Orleans? Do you have one? Drug crime is everywhere. The rural counties and woods (read: Republican counties) are full of illicit meth labs. I wouldn’t dream of living in the countryside in any Ross-voting county without a gun for self-defense. They will come right on your property and set up squatter camps and meth labs if you aren’t armed. So your point about urban crime is — ? That people are safer in cities?

16. klake spews:

It appears that the Mayor Ray Nagin is working very hard at returning New Orleans back into the lime light. He is now restoring the rights of all criminals to vote in the next election.

NEW ORLEANS, Louisiana (CNN) — Mayor Ray Nagin on Tuesday apologized for urging residents to rebuild a “chocolate New Orleans” and saying, “You can’t have New Orleans no other way.”

http://www.nytimes.com/2006/03/30/national/nationalspecial/30crime.html?_r=1&th&emc=th&oref=slogin

As Life Returns to New Orleans, So Does Crime

By ADAM NOSSITER
Published: March 30, 2006
NEW ORLEANS, March 29 — The wail of police sirens is back, and gunfire again punctuates the night. As drug dealers move into flood-damaged houses, alarmed residents say that in the last few weeks, they have begun to sense a return to the bad old days before Hurricane Katrina, when crime was an omnipresent straitjacket on life in this city.

17. Richard Pope spews:

Headless Luch @ 28

Thanks for the compliment.

18. headless lucy spews:

The surprise is not that Kaloogian, a Republican, lied. That is a given. The surprise is that this is even more INCOMPETENT than one would expect of the inept Republican Fundamentalist neo-cons.

19. headless lucy spews:

http://www.thirdworldtraveler.com/Prison_System/Masked_Racism_ADavis.html

If you read the above article with an open mind, I’m sure you will see that letting the ex-felons vote is the American thing to do.

20. headless lucy spews:

re 3: Good thing we got Richard Poop around. He’s like Mr. Wizard and the answer man combined!

21. Karl spews:

I only take issue with one of your statemments, that being that they are barred from voting for life. That is a distortion, and while in some cases it may be true, it is not a guarentee of any means.

But leaving that aside, I think there is room for a discussion on “which” LFO’s are important here.

I personally think that victim restitution is not an unreasonable standard to deny voting rights.

I think however that there is a valid argument in excluding the court and legal fees, which are often outrageous and unreasonable.

If nothing else, the debate should shift into the main ring for a while, and let’s see what happens.

22. Hillary [JCH]Clinton spews:

21.Goldy. Well said!! Felons must vote early and often in NOV 2008!! Hillary Clinton

23. Hillary [JCH]Clinton spews:

Open the prisons and bus the felons from poll to poll on Election Day!!!!!!!! Free Marlboros, Black Velvet, and Maui Wowie for all felons who vote Democrat!!!!!! Hillary Clinton

24. Voter Advocate spews:

18.

I would agree that some of the LFOs placed on felons are to reimburse victims, although in the case of Beverley Dubois it is unclear to me who the victim would be. In her case, much of the money was likely for county or interlocal drug programs. LFOs for court appointed attorneys fee and legal defense costs appear punitive to me. The point of appointing public defender is the accused cannot afford a lawyer.

I always thought attorneys worked “pro bono”. Apparently, I am mistaken.

25. Voter Advocate spews:

24.

Attorney’s working for indigent clients, that is. Some number of lawyers working for law firms work pro bono. I know that most counties do their public defender work by basically hiring private attorneys.

26. Goldy spews:

Cynical @20,

Thanks again for proving to be little more than a talking points liar. As I’ve stated, the majority of the LFOs have nothing to do with restitution. And you know it. Yet you and your fellow robotic trolls continue to harp on restitution, because you know that is the word with the most emotional appeal.

You could give a shit about the rights and welfare of others. You’ve decided that felon disenfranchisement gives you an electoral advantage, and so you’ll fight tooth and nail to defend it.

So I guess, there’s really nothing for the two of us to debate, since you refuse to actually address the issues I’m raising.

27. Mr. Cynical spews:

Goldy—
Are you now trying to become the 1st
Gay & Lesbian, Afro-Jew who survived the Holocaust in Philly as well as being the Friend of the Felon???

This will be a very interesting case as pointed out.
I’ve got an idea…..
Why don’t you Democrats CHANGE THE LAW to make it crystal clear your love, concern & compassion for felons who haven’t paid their Restitution to their VICTIMS????
Perhaps Goldy can start a new Blog devoted strictly to FELONS and their endless mistreatment by mean Republicans…….
You can call it “FELONS ASS.loser”!!!!

28. middleoftheroader spews:

Goldy,

After looking at the provisions in the Washington Constitution, I remain unconvinced that Judge Spearman’s decision was correct.

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

First, citiztens over 18 who are prohibited from voting go through the same process to restore their rights. Each were convicted in a Court of law and subject to the same terms in order to restore their rights to vote. Is the inability to pay different if someone recieved an extended sentence for the same crime and thus ineligible to vote for that much longer.

SECTION 19 FREEDOM OF ELECTIONS.
All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

This provision would be important, except for this:

Article VI SECTION 3 WHO DISQUALIFIED.
All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise. [AMENDMENT 83, 1988 House Joint Resolution No. 4231, p 1553. Approved November 8, 1988.]

While this section permits the restoration of rights, the legislature can determine what standard to use to restore voting rights. If the legislature wants to, and I believe it should, it can change the law.

Again, Goldy is right to state that a non-appeal does not necessarly mean acceptance of a problematic decision, but it remains a weak decision that may have unintended consequences of adopting heightened scurtiny for wealth.

Otherwise, the standard is rational basis review, not some sort of heightened scrutiny. The normal line for determining what type of scrutiny to apply depends on the group that is excluded from participation, Despite the cases cited in the decision, wealth is not normally a category, like race, gender, or sexual orientation, that is accorded heightened scrutiny.

29. Libertarian spews:

“If all felons got the right to vote in 2004, Dino Rossi would be Governor today.”

I think if felons got to vote in the 2004 election, Gregoire would have won be a handsome margin, and we would have avoided all that mess with King County and their counting of the votes.

30. David A spews:

The fine or restitutions are, in themselves, penalties.

The fine is, but restitution is not.

A “fine” is a penalty, much like the one levied for traffic violations. It can be applied either in addition to, or in lieu of jail or prison time. In most felony cases, a fine is not applied. The court usually opts for a period of incarceration instead.

“Restitution” is a civil matter that is handled by the criminal court to simplify the system and avoid a possible double jeopardy issue. It represents a tangible monetary loss to a victim as a result of the crime itself. It is NOT a penalty, but is enforced as a condition of a supervised release from custody.

That said, if a felon has an approved payment plan, why not restore the rights when the plan is approved or after they demonstrate that they are good citizens?

I couldn’t agree more.

31. Green Thumb spews:

In this case I think Reed has caved in pressure from his fellow Republicans. He’s afraid of primary challenge. Sam’s pretty moderate, but he hasn’t been above playing politics. This is not his finest hour.

It isn’t clear that Sam understand that he will maintain bipartisan support as long as he doesn’t turn into a party hack. What he win in a Republican primary could very well get taken away in a general election.

32. Hillary [JCH]Clinton spews:

McKinney is a leftist Democrat black woman, so there will be no consequence for her actions. But if Tom Delay ever pulled such a stunt, the MSM would stomp a mudhole in him.

33. Hillary [JCH]Clinton spews:

All Felons must vote!! And before NOV 2008!! Hillary Clinton

34. righton spews:

I smell a rat.

Reed just going thru the motions. He’s a dim at heart. Guess DeanRon hasn’t called him yet

35. BushLied spews:

Gee wiz don’t you guys understand how righties think? All we need to know is that they always try to do the thing that they think will keep them in power (in this case denying as many people as possible the right to vote) and, they will do ANYTHING, no matter how harmful it is to society to win.

In the case of felons voting, it shouldn’t take a genius to figure out that the more we incent the felons to rejoin society in the most normal way possible, the less likely they are to re-offend. If we see to it that they can work, marry, have a family, vote and in every other way become a whole part of society, they will realize they have something to looooose if they re-offend.

But righties don’t EVER look at things from the perspective of what’s best for society. They look at what’s going to grant them power.

36. Goldy spews:

Roger @6,

Well, I specifically said it wasn’t a slam dunk, and having read the decision I think it is pretty clear where the state is going to focus its arguments. But I should also point out that the ruling was not simply based on the equal protection clause, but also on Article 1, Sections 12 and 19 of the WA state constitution.

But in this post I was not attempting to argue the legal underpinnings of this decision, but rather, lay out some of the practical policy considerations. Clearly, in the wake of the 2004 election, the Democrats won’t have the balls to address this issue and reform our felon re-enfranchisement laws. Indeed, the Republicans have been such a bunch of heartless, manipulative, irresponsible bastards in terms of discussing this issue, that if it ever came up, they would surely launch a sex-offender-type campaign to permanently disenfranchise felons, period.

So Judge Spearman’s decision gave Reed the opportunity to address this issue with little controversy; just don’t appeal. And instead, he chose to support the party line.

Too bad. From a sheer policy consideration, there is no compelling public interest to maintaining the tortured system we have now. None. It’s expensive, nearly impossible to administer, and discourages reintegrating ex-felons back into society. (The American Correctional Institute cites studies that ex-felons who vote have lower recidivism rates.)

And of course, as long as this system is in place, there will always be a few ex-felons improperly on the roles, giving people like Stefan and the EFF the opportunity to continue their efforts to destroy the public’s faith in the electoral process.

37. rhp6033 spews:

RR at 6:

You are applying the “rational basis” test improperly. Your test is one which applies to legislation in general. All legislation creates two classes of people, those who are advantaged by the legislation, and those who are disadvantaged. That is why the “rational basis” test is such a low hurdle to jump.

But the right to vote is not “legislation in general”. It is a fundamental right in our democracy, and at the very least, on a Constitutional level, it should be be subject to the much stricter tests which apply to 1st Amendment cases, or where issues of racial discrimination are involved. Hence poll taxes are unconstitutional, regardless of any “rational basis” argument which might support them. The only issue, in this case, is whether or not this is in effect a poll tax which applies only to a specific minority class of potential voters.

38. Voter Advocate spews:

The fine or restitutions are, in themselves, penalties.

Withholding voting rights for non-payment of them is an additional penalty, and a gratuitous and political mechanism to further disenfranchise poor people.

39. righton spews:

Dims answer to it all

Don’t fine the felons, and better to fine than to jail; oops, now that means no penalties

Goldy, isn’t paying taxes also discriminatory? Heck, African Americans pay more taxes supporting say Qwest field than their attendance indicates. Should they get a break in the rental car tax, restaurant tax?

40. Will spews:

I have another idea… the state should let the woman vote.

41. Roger Rabbit spews:

Unfortunately, Goldy, the test of constitutionality under the equal protection clause is not whether the current law is “expensive and troublesome to administer,” or whether striking it down would be more “fair” or “moral,” or “simplify” the voting system. All of these considerations are irrelevant.

The equal protection clause does not require equal treatment. A law passes equal protection muster if there is a “rational basis” for disparate treatment. I won’t speculate whether a “rational basis” exists for treating ex-felons differently in terms of voting rights based on whether they have paid LFO’s; for one thing, I don’t want to give McKenna or Reed any ideas for arguments they might make to the court. They get paid to figure that stuff out, so let THEM figure it out!

I just want to warn you that the “rational basis” test is not much of a hurdle, it’s an easy test to meet, and whether Spearman’s decision survives appellate scrutiny is not a slam-dunk.

42. Roger Rabbit spews:

3

I have a better idea. She should sue the tobacco companies for selling her an addictive and dangerous product, then pay off her fines from her millions.

43. Richard Pope spews:

This lady should quit smoking. It costs about five bucks for a pack of smokes these days. She would be able to pay off her fines in a year or two and get the right to vote back.

44. Will spews:

Also, nice job keeping the wheels on the wagon on Tues. night! Good show.

45. Will spews:

But Goldy, we have to keep these violent predators from voting again, or some shit Stefan would say. Whatever. If all felons got the right to vote in 2004, Dino Rossi would be Governor today. Which, you know, would be bad, but at least we’d have moral consistency. Which is good.

46. sgmmac spews:

Felons need to “redeem” themselves back into the society that they screwed over with their crime…… It should NOT be automatically restored.

That said, if a felon has an approved payment plan, why not restore the rights when the plan is approved or after they demonstrate that they are good citizens?

What does her smoking have to do with voting? Her cigarettes would be cheaper if Washington State stopped collecting those taxes that a Judge just ruled were illegal…………

Interesting that the State jumped all over the felon voters, but we haven’t heard a peep about when they are going to stop collecting those taxes!

And what does the State plan to do about those 6 workers that they fired for not joining the Union now that the Union has admitted that they didn’t send their members the right paperwork and they’ve asked the State to Stop firing people for not paying dues………….