Many people will blow off their right to vote in February's low-key elections, as they do in even sexier elections, but some people locked up in Washington prisons — who are kept from the ballot box as well as the street — would like to have that right. If the 9th Circuit's recent decision in Farrakhan v. Gregoire is upheld by the U.S. Supreme Court (never a safe bet where the 9th Circuit is concerned), they will gain that right. Currently, only two states in the nation, Maine and Vermont, let prisoners help choose their elected representatives. Denying prisoners the franchise is as old as the nation; it's older, actually, with roots in English law.
The 9th Circuit majority has found, however, that Washington's felon-disenfranchisement law violates the federal Voting Rights Act. So, presumably, do laws that keep felons from voting in the other 9th Circuit states and territories of California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Guam, and the Northern Mariana Islands.
On Jan. 28, the court said it would suspend this ruling so that the state can appeal it to the Supreme Court. Attorney General Rob McKenna and Secretary of State Sam Reed have already said the state will appeal, McKenna saying he'll argue the case himself. (A hard one for an ambitious politician to resist.)
The 9th Circuit's ruling rests on the unarguable premise that members of some minority groups are locked up more often than white people, and that not all the disparity can be explained by the fact that they commit more crimes. The lower court in Farrakhan had found “compelling” evidence of bias in Washington's criminal justice system, and concluded that disproportionate rates of incarceration had, in fact, prevented minorities from voting.
However, the lower court didn't view that bias in isolation; considering all the circumstances of the case, it couldn't say that Washington's law violated the Voting Rights Act. The 9th Circuit majority followed a different thought process. It said basically that if a racially biased system kept minorities from voting, there was no need to look further.
The judges didn't suggest that the inmates of Washington's prisons had been railroaded. The felons had presumably committed the felonies of which they'd been convicted, and had acted of their own free will. But the cops could have arrested white people instead. The majority noted that police tend to arrest people who deal drugs in public, and who commit crimes downtown, and those people turn out to be disproportionately members of minority groups.
Farrakhan deals narrowly with felon disenfranchisement. But its underlying premises are much broader. If courts or policy makers extended those premises, the implications for law enforcement would be profound. Presumably, cops would have to drive or walk right by people openly selling drugs or prostitution if the people soliciting were non-white. Presumably the idea of enforcing the law against “crimes of civility” that in theory lead to a breakdown of public order would be DOA. Does anyone really want that?
Seattle City Councilmember Tim Burgess said a couple of years ago that “we need to change our view on street crime and what people refer to as quality-of-life/nuisance crimes. We've allowed a level of social disorder for a long time, and I don't think we have to." His Safer Streets Initiative noted that “city residents complain bitterly to the council about the deterioration of their neighborhoods caused by street crime and social disorder.” The solutions include “additional emphasis patrols — officer presence — in areas with recurring problems. Our police officers must know that city officials support — and expect — proactive and assertive response to these problems. There is no justification for allowing open-air drug markets, street prostitution, graffiti, aggressive panhandling and other social disorder to continue on our streets.” But not allowing it might have a disparate racial impact. Should that be a problem?
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