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A Wake Up Call

By Advokat January 6, 2010

The Ninth Circuit Court of Appeals ruled yesterday that the State of Washington’s Constitutional disqualification of convicted felons from voting, who have not had their civil rights restored, violates the federalVoting Rights Act.  In a 2-1 decision, the Court found that voting rights in Washington were being denied as a result of racial discrimination within the Washington Criminal Justice System.

Under the Washington Constitution, persons convicted of “infamous crimes” are disqualified from voting unless their civil rights have been restored.  By statute, the Washington legislature defines “infamous crimes” as ones punishable by death or imprisonment in a state correctional facility, i.e. felonies.  Convicted felons are not eligible by statute to have their civil rights restored until they have been released from state custody.  Several prisoners challenged the disqualification under the federal Voting Rights Act.  The challenge was supported by two statistical studies of racial disparity within the Washington Criminal Justice Systems conducted by University of Washington professors.  These studies found, in the words of the Court, that “police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways.”

The studies noted, for example, that police policy choices to focus on crack cocaine and street drug trafficking (as opposed to powder cocaine and drugs deals in homes and apartments) fall disproportionately on African Americans and Latinos compared to those groups’ share of the drug trade in Washington. Similarly, the proportion of drug arrests of those groups bears no proportion to users among the races.  African Americans and Latinos were subject to police searches at higher rates than whites even though such searches resulted in fewer proportionate seizures.  Minorities were detained in disproportionate numbers even accounting for issues such as the severity of their crimes, past criminal records, community ties and prosecutor’s recommendations.  The evidence that the system is biased was “compelling.”  The Court concluded that because this racial bias resulted in a disproportionate felony conviction rate for minorities and resulting disenfranchisement, the Voting Right’s prohibition on denial of the right to vote because of race was violated.

The responses from the State Attorney General (he announced today that he's appealing the decision to the U.S. Supreme Court)  and Secretary of State have focused on the decision being an aberration. They are right.  The decision is an aberration in that other federal Courts of Appeal have held that felony disenfranchisement laws that have a disproportionate impact on minorities are not violative of the Voting Rights Acts.  And even though the decision is well-reasoned, it likely will be overturned either on a full hearing before an en banc panel of the Ninth Circuit or the United States Supreme Court.

The State Attorney General and Secretary of State have also argued that there is nothing wrong with the notion that a person convicted with a felony forfeits many rights including the right to vote. That conclusion can be subjected to a reasonable policy debate, but the people of Washington have spoke on this issue with clarity in the Washington Constitution.  And (as Josh reported from last year's session in Olympia) the State legislature appropriately amended the reinstatement process last year to remove the draconian requirement that released felons pay all fines and interest associated with their sentence before their rights can be reinstated (a problem that infamously plagued Florida in prior elections).

But a debate on either of these points completely misses the significance of the decision.  The decision is a broad and ringing indictment of a criminal justice system that is broken and needs fixing immediately. There simply is no excuse for a system that is racially discriminatory.

This is a wake-up call to all levels of government from the Governor and the Attorney General to the Mayor and soon to be named police chief of Seattle to fix the system to make it fair and unbiased.  And if anyone gets to that, focus should also be given to the role of economics in disparities in the criminal justice system.  Poorer Washington citizens do not have equal access to justice in Washington and also bear a disproportionate burden from a system that is broken.

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