January 7, 2010
Voting Rights for Felons: Presto Retro!
Patterico has posted on this topic as well -- the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer's, and especially a prosecutor's point of view; and in his post, he dressed me down a bit for my previous post here... or so it seemed to me. Patterico writes:
Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.
I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.
My response may be solitary, poor, nasty, and brutish; but at least it's not short!
The first charge is certainly correct; at the time I wrote the post, I didn't have the decision available to me. I couldn't even find the name of the the third judge (turns out to be Stephen Reinhardt, a name not unknown to many of us).
But to say I have "failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring" is only true in the narrowest of meanings: While I didn't grapple with these particular studies by those particular sociology professors, I have been "grappling" with identical claims by interchangeable sociology and criminology professors for more than twenty years!
I wasn't born on the turnip truck yesterday.
And I've learned it's a complete waste of time, because the studies they produce are just a beard for the real function, which is to find a friendly judge or panel, as they did here, and give them any slightest hook to hang their ideology... which they also did. Professors Crutchfield and Beckett could have introduced a wind-up monkey with a plastic banana as their sole exhibit, and Judges Stephen Reinhardt and Wallace Tashima would have given in to their inner guilt and ruled the same way. We were preaching reason to the asylum choir.
The fact is that none of these claims is new. Each has been made, then debunked, in one form or another, in service to one crank liberal "reform" or another, since the dawn of all time (that is, the 1960s): that a racial disparity in measurement X -- incarceration, conviction, trial, arrest, or search -- proves unlawful and intentional racial discrimination by some or all elements of the justice system.
In the very beginning, the anointed were content to point to any racial disparity at all. When evidence mounted far past the "overwhelming" stage that, contrary to liberal dogma and utopianism, people from different cultures do indeed commit crimes at different rates, the anointed realized they had to give some ground.
Ever since the 1980s, when I first began debating this issue in bulletin boards (anybody remember those?), the pro-reform side of academe has followed the same pattern:
- The new researchers cite previous researchers who found no discrimination -- and dismiss them as naive or bought off.
- The new researchers admit that some of the racial disparity can be explained by real differences in behavior... that is, not by direct racial discrimination; this makes them look reasonable and sets you up for the Fool's Mate.
- But, they argue, not all the discrepency can thus be explained (to their unattainable satisfaction) by proper and legal responses to real differences.
- Therefore, they conclude, the remaining "gap" must be due to racial discrimination. There's no other explanation, at least none they will consider.
It's very effective, particularly on kritarchs drunk on their own power, just itching for a chance to implement divine judicial controls, enforcing radical liberalism.
I didn't have access to the particulars of this specific batch of anointed; but even if I had, I still wouldn't have bothered "grappling" with their precise claims, because that's not the problem. And my reasoning is almost certainly similar to that of the state's attorneys, and why they didn't go into the specifics of the studies, either: At core, this case hinges on principles completely independent from choosing one of two competing answers to a controversial and active scientific question.
Diving headfirst into the steaming vat of statistics is a mug's game, because it begs the real question. There is literally nothing anyone could say, no evidence that could be produced, that would persuade the plaintiffs that policing and the courts were not citidels of segregation and redoubts of racism: It is part of their fundamental-materialist religious faith.
When setting public policy on vital democratic issues related to scientific questions (hello, global warming), there are always three considerations -- threshold conditions, actually; and none covers what I think Patterico suggested I should have done:
- Is the science settled? E.g., is there a scientific consensus among criminologists and sociologists that the criminal justice system in Washington is inherently racially discriminatory, violating the rights of legitimate voters?
- If so, then what options exist to alleviate the problem? In this case, what can Washington do to bring itself into compliance with federal standards and its own state standards of racial neutrality?
- Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people? In this case, if people are being wrongfully disenfranchised, what is the least disruptive way to let the actual victims start voting again?
(Sorry for all the bullet points, but some arguments really lend themselves to such constructs.)
Alas, I don't think there is a very good match between the questions above, which should inform all major policy decisions, and the demands of a federal court trial, which is an adversarial exercise in which one side generally wins and the other loses. That's too bad... because in fact, not a single one of the three threshold conditions above is satisfied (and all three need to be). Moreover, when the thresholds are not met, the judiciary has no business interfering in public policy... even apart from any great principles of freedom that trump the scientific quibbling.
Now, if a particular prisoner wants to argue that his personal voting rights were violated, let him make that claim and duke it out in court. That would at least be a judicial task.
But instead, the question that the court considered (and ruled in favor of) was grotesquely anti-democratic, collectivist, and, to put it bluntly, profoundly unAmerican: Not whether the voting right of any particular prisoner was violated, but whether the rights of all blacks and Hispanics in Washington state were violated.
And the substance of the "right"? Why, the right to have the votes of all blacks and Hispanics, law-abiding and convicted felon alike, count for the Democrats. I won't mince words; the liberal-activist Democrats want more electoral victories, and they think this will do it.
It's the Lani Guinier Conundrum: Does a bloc of voters have the right to win a certain percent of the time? In 1993, Bill Clinton nominated Guinier to be Assistant Attorney General for Civil Rights. Her nomination ran into a buzzsaw in the Senate and was eventually withdrawn.
She believed that indeed yes, blocs of minority voters -- specifically blacks and Hispanics -- had a right to win, even when they were in the minority; otherwise you have a "tyranny of the majority," she argued in the book of that title. (The hidden racist assumption is that all "minorities" think alike... or at least they should!) Thus, Guinier supported various weighting schemes to make each minority vote count for more than each of the votes of the majority. (She had to have assumed, again, that each class would vote its "class interest.")
I'm convinced that is precisely why the present case was brought: Not that the plaintiffs really cared that felons be allowed to vote, but that they assumed that a big, new bunch of black and Hispanic voters previously disallowed from voting would, when finally unleashed, vote solidly liberal-Democratic.
(Patterico notes another point: Many prisons are sited in rural areas, not in the midst of huge population centers, for obvious reasons. Thus, that "captive audience" of voters would exert a super-heavy, possibly determinative influence over local elections about local issues. In my opinion, they could practically take over small towns!)
I haven't forgotten the three questions above; we'll get back to them. But we're still dealing with the fundamental principles, and why the specific claims of liberal sociologists are actually irrelevant.
We have a fundamental principle in the United States; and that is that "rights" inhere in individuals... not factions. It does not matter how a right will affect the results of an election; freedom of speech applies to all, not just favored constituencies; either every individual has the right or none does.
In this case, no individual legal voter is denied his right to vote merely because a convicted felon with a similar skin color has lost his right to vote. My voting right is intact, even though white convicted felons housed nearby must sit out the election. However much the faction of liberal, black and Hispanic Democrats may wish they could scavange a few more votes from the prisons and among those felons who have served their time, they have no "right" to those votes.
The hyper-principle here is that the Voting Rights Act was never meant to hand more power to a particular voting faction; it was meant to protect each individual from being wrongfully denied his constitutional and state-constitutional right to cast a vote. It no more violates the voting right of a legal voter to disenfranchise convicted felons than it does to disenfranchise children, non-residents, aliens, or those who do not register to vote.
To say otherwise is to say that everyone can vote... mewling infants, alien serial killers, foreigners living abroad, and the dead. (But if the dead aren't allowed to vote, how will Democrats ever win another election in Illinois, Louisiana, or New Jersey?)
That is why it literally should make no difference whether the judicial system in Washington state is racist, because the remedy plaintiffs sought (and the Ninth Circus granted) was wild overkill, and a complete non-sequitur:
- If plaintiffs could prove that blacks and Hispanics were being convicted of bogus charges in order to prevent them from voting, then they should bring a case to release those particular blacks and Hispanics and expunge their convictions.
- If plaintiffs could prove that blacks and Hispanics were being frightened away from the polls by a latter-day Bull Connors, then they should bring a case to prevent the police from doing so, and perhaps award damages to the actual victims.
But under no circumstances should the "remedy" be to allow all felons, willy-nilly, to vote, because that is not even the problem they allege. The problem they allege is that the justice system is racially discriminatory, not that it's unconstitutional or illegal, as a general point, to suspend or eliminate a felon's voting rights (along with his right to possess firearms, his right to join the armed services, and so forth).
The proof is simple: If they were asserting a general right of felons to vote, then why bring up racial discrimination at all? If a felon has such a right, then he has it whether he is black, Hispanic, Asian, American Indian -- or white; and whether he is incarcerated in a city that has a discriminatory justice system or one whose justice system is squeaky clean, even by Stephen Reinhardt's standards.
By relying on claims of racial discrimination and the Voting Rights Act, plaintiffs admit that they only assert that some felons have the right to vote, not every felon everywhere; some felons are more equal than others. A black felon housed in Massachusetts has no such right; but if he's transferred to a prison in, say, rural Georgia, where the justice system may be racially discriminatory, then he would suddenly gain the right to vote -- even if he were never detained, searched, arrested, tried, or convicted in that county. Quelle surprise!
That is why I didn't even bother examining the claims of racial discrimination in the Washington justice system: As Perry Mason would say, because it's irrelevant, incompetent, and immaterial... and that is the part of this debate that has not changed since the 60s (when the lunacy began), nor since the 80s (when I began debating the lunatics).
All right, with the principles clarified, we could stop right there; we don't reach the question of the science. But we're not a court, so we can still ask those three questions about this particular issue. In case you've forgotten in all the excitement, here they are again:
- Is the science truly settled?
- If so, then what are all the options available to the state alleviate the problem?
- Finally, among all those options, which is the least disruptive to liberty, social order, and the will of the people?
On the first question, no, the science is obviously not settled, because many criminologists and sociologists argue that the justice system is not inherently racially discriminatory; as Patterico notes, the plaintiffs' experts actually cite some of those disagreeable dissenters.
"Not settled" guarantees that somebody is wrong here. It doesn't guarantee anybody is right; in theory, everyone could be wrong! But at the least, the anointed reformers could be wrong; the scientific method will have to sort it all out... assuming it's allowed to function, unlike the Climategate fiasco.
So far as I know, Patterico is not qualified to mediate between competing scientific claims about racial disparities and racial discrimination. Certainly neither am I, despite my math background; the intricacies of the science are well beyond me. But neither is either Reinhardt or Beckett; so where do they get off, ruling that Crutchfield and Beckett had better science than other researchers who found no illegal discrimination? Has either robèd gentleman taken even a single university-level course in statistics?
For an encore, Reinhardt and Tashima will issue a legal opinion on the Continuum Hypothesis, whether an infinity exists strictly between ℵ0 and ℵ1; the mathematical world waits with baited hook.
As I noted last post, all criminologists (including those hired by the plaintiffs in this very case!) agree that people from different cultures do indeed have different crime rates; the only disagreement is whether that behavior completely explains the conviction discrepency. Ergo, there is no consensus that the system is racist, and the very first threshold condition is not met.
Mind, all three must be met before it's legitimate for judges to monkey with voting or legislating. The anointed reformers have already lost the argument (though not the case, alas, at least not yet). But in fact, they lose on both other points as well:
They failed to enumerate all the available options, or even all the obvious ones. For example, they didn't suggest that each convicted felon's case should be reviewed, and voting rights granted only where a significant likelihood exists that the convict was railroaded due to racial discrimination. Why should a white convict caught red-handed robbing a Tofu store have his voting rights restored? What does that have to do with the plaintiffs' race-based theory of the case?
Finally, nobody has claimed, not even Patterico, that the majority judges weighed several options for dealing with the supposed racism within the justice system -- then picked the least disruptive of them all. I conclude a complete lack of parsimony; they jumped right to the most radical "remedy."
See? I didn't forget.
So the long and the short of it [hah, try and find the "short"!] is that I didn't grapple with the specifics of the claims by the anointed reformers because it's a dead-end detour; it has nothing to do with what's so wrongheaded about this decision. The scheme is as old as dirt, and I figured out a long time ago that there is never any closure arguing with people like Professor Crutchfield: He'll let you horse him around from one inconsistency to the next; then when you get tired and wander away, he'll loudly declare victory.
I went straight for the rhetorical jugular, the unAmericanness and radical nature of this decision. I have no regrets.
Cross-posted on Hot Air's rogues' gallery...
Hatched by Dafydd on this day, January 7, 2010, at the time of 11:18 PM
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Patterico has posted on this topic as well — the three-judge panel of the Ninth Circus that just ruled that felons must be allowed to vote, even from their prison cells. He posts from a lawyer’s, and especially a prosecutor’s point o... [Read More]
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