Editor's Note: PubliCola's LawNerd published a piece late last month titled: "Mr. McKenna, Does it Matter to You that Washington State's Criminal Justice System is Discriminatory?"

Those are a fighting words and LawNerd (aka Advokat) came out swinging, saying that Washington State AG Rob McKenna, in defending Washington state's felony disenfranchisement law in Farrakhan v. Gregoire, was defending a discriminatory justice system.

Attorney General McKenna swings back. Here's his response to LawNerd.

Racial and ethnic disparities in our society should concern every American. African-Americans, for example, disproportionately suffer from poverty. Black children are more likely to attend struggling schools and live in neighborhoods where crime, drugs and alcohol are dangerous influences. And yes, some disparities exist in the criminal justice system. All of these problems demand our attention.

Thankfully, we’ve seen improvements over the years in all these areas, as more people of color than ever attend college, achieve middle class lifestyles and serve in the highest ranks of business and political leadership. Some believe, however, that to erase remaining discrimination in our criminal justice system we must permit all felons — regardless of race or ethnicity — to vote while behind bars.

This is the issue in Farrakhan v. Gregoire, a case being considered by the Ninth Circuit Court of Appeals, which I argued on behalf of the state last month. Muhammad Shabazz Farrakhan, a thief who served years behind bars, filed the case in 1996. His co-plaintiffs include:

  • Ramon Barrientes, sentenced to more than 31 years in prison for a committing a gang-related murder;

  • Timothy Schaaf, serving decades after he pled guilty to strangling a female hitchhiker to death; and

  • Clifton Briceno, serving a long term for a brutal first-degree murder.


These felons allege that minorities are “disproportionately prosecuted and sentenced,” and therefore that a disproportionate number of minority felons lose their right to vote.

The tradition of restricting felons from voting pre-dates the United States. It was the practice of ancient democratic Athens and of England and springs from common sense. It’s practiced, in one form or another, by most western countries. All U.S. states but two require some sort of felony disenfranchisement, as has Washington state since territorial days and under our state constitution.

The idea is simple. When a person violates the most fundamental of social contracts, by raping or murdering another human being or molesting a child or committing a robbery, for example, he surrenders his right to participate in our democracy—at least until he’s paid his debt to society. The idea is not based on race, but rather the most rudimentary sense of justice.

The 14th Amendment to the Constitution allows states to deny the right to vote to those who have been criminally convicted, in a trial at which they enjoy the right to due process.  Moreover, the 14th Amendment expressly approves felon disenfranchisement. Our Legislature has continued to support felon disenfranchisement, most recently in 2009, when it revised the law to allow voting rights to be restored when a prisoner completes his prison term.
Still, the plaintiffs in the Farrakhan case claim felony disenfranchisement violates the 1965 Voting Rights Act (VRA), outlawing discriminatory voting practices.

All three of the other federal circuit courts to consider the question agree with our position that the VRA was never intended by Congress to apply to felon disenfranchisement, as the Act's legislative history makes clear. As those courts have noted, the law prohibits voting qualifications that deny or limit the right to vote on account of race, and felon disenfranchisement simply does not meet that test. Felon disenfranchisement disqualifies all who commit serious crimes, regardless of race, and has done so since long before African-Americans were finally granted their freedom and suffrage under the Reconstruction Amendments in the 1860s.

Felons are not prevented from voting because of their race but because of their actions. Each person, regardless of his race, is equally capable of maintaining his right to vote and his civil liberties by refusing to commit a serious crime. And if convicted of a felony, he may regain his right to vote by serving his sentence. In cases where the accused believes he was wrongly arrested and prosecuted, our justice system provides for challenges on that basis.

It’s important to note that none of the plaintiffs in the Farrakhan case ever challenged his sentence on this basis of racial discrimination. And interestingly, most can’t recall the last time they voted or admit never registering in the first place.

What can be done about racial bias that remains in our justice system? Police departments have made huge strides hiring officers who grew up and live in the communities they serve. Citizen oversight boards review police policies and courts provide avenues to challenge abuses. The legislature has reformed drug sentencing laws to reduce racial disparities. These improvements should and will continue. Along with other improvements and reforms, they have helped to dramatically reduce racial disproportionality in Washington state prisons in the past 30 years: In 2009, for example, Hispanics and Asian-Pacific Islanders represented a smaller share of the state prison population than in the state as a whole. African-Americans, while still overrepresented in state prisons, have seen about a 60 percent reduction in disproportionality since 1980.

The remedy demanded by the Farrakhan plaintiffs is unacceptable. They propose that because some discrimination remains against people of color, all imprisoned felons in Washington – 67 percent of whom are white – should be, in effect, sent absentee ballots.

On Sept. 23, “Advokat” wrote on PubliCola that “the most disturbing aspect of McKenna’s participation [is] that he is limiting himself to winning the argument that the Voting Rights Act does not apply even though both the trial court and appellate court found compelling evidence of discriminatory bias in Washington’s criminal justice system.”

“Advokat” misses the point. Evidence of some discrimination in our justice system does not entitle every rapist and robber in the penitentiary to be caravanned to his next party precinct meeting.

In our quest to continue to combat racial discrimination, we must not create a potentially enormous injustice: Granting tens of thousands of serious lawbreakers the ability to help shape municipal, state and federal laws from behind bars, and to vote in the elections of the very prosecutors, judges and lawmakers who put them there.

This is AG McKenna's second piece for PubliCola. He wrote a Cola Op/Ed in February.