Should a Felony Be a Barrier to Voting Behind Bars and Beyond?

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, December 13, 2023, we're delighted to host a discussion on the question, "Should a Felony Be a Barrier to Voting Behind Bars and Beyond?"

 

      My name is Chayila Kleist. I am an Assistant Director of Practice Groups here at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, I will keep my introduction of our guests today brief, but if you'd like to learn more, you can access their impressive full bios at fedsoc.org.

 

      Today we are fortunate to have with us Mr. Jeff Jacoby, who has been a columnist with the Boston Globe since 1994. A native of Cleveland, Mr. Jacoby has degrees from George Washington University and from Boston University Law School. Before entering journalism, he briefly practiced law at the prominent firm of Baker & Hostetler—excuse me—and worked on several political campaigns in Massachusetts, and was an assistant to Dr. John Silber, President of Boston University. In 1999, Mr. Jacoby became the first recipient of the Breindel Prize, a major award for excellence in opinion journalism. And in 2014, he was included in the “Forward 50,” a list of the most influential American Jews.

 

      Also joining us today is Nicole Porter, who is Senior Director of Advocacy at The Sentencing Project, where she directs The Sentencing Project's state and local advocacy efforts on sentencing reform, voting rights, and confronting racial disparities in the criminal legal system. Since joining The Sentencing Project in 2009, Ms. Porter’s advocacy and findings have supported criminal legal reforms in several states, including Kentucky, Maryland, Missouri, California, Texas, and the District of Columbia. Ms. Porter's research has been cited in several major media outlets, including the Salon and The Washington Post, and she has appeared in the New York Times, Washington Post, and on National Public Radio and MSNBC. Ms. Porter is also the former director of the Texas ACLU’s Prison & Jail Accountability Project, where she advocated to the Texas legislature to promote felony enfranchisement reforms, eliminate prison rape, and involve -- improve—excuse me—prison medical care.

 

      Lastly, joining us today as our moderator for today's discussion is Mr. Marc Levin, who is Chief Policy Counsel for the Council on Criminal Justice and Senior Advisor for Right on Crime, a national campaign of the Texas Public Policy Foundation. Mr. Levin has testified on criminal justice policy on four occasions before Congress and has testified before legislatures in states including Texas, Nevada, Kansas, Wisconsin, and California. Mr. Levin has published dozens of policy papers on topics such as sentencing, probation, parole, reentry, and overcriminalization. And his articles on law and public policy have been featured in publications ranging from The Wall Street Journal to the Texas Review of Law & Politics to the Jerusalem Post, Los Angeles Daily Journal, and many others, and I will leave it there.

 

      One last note: throughout the panel, if you have any questions, please submit them by the question-and-answer feature found at the bottom of your Zoom screens, so they will be accessible when we get to that portion of today's webinar.

 

      With that, thank you all for joining us today.

 

      Mr. Levin, the floor is yours.

 

Marc Levin:  Well, thank you. I'd like to just start by outlining the contours of this issue, and I don't think one can overstate how timely this topic is. There's a Fifth Circuit case that I'll talk about in a minute that's going en banc in January. There's the Michigan automatic registration law that just was passed. There's a new proposal in Congress to get rid of all felony disqualifications that's very unlikely to go through. And then, of course, this topic came up at the end of the last presidential debate for those of you that are watching.

 

      But, to me, there's -- I want to just highlight a few dichotomies to consider as we go through this. And number one is: What's constitutional versus what's good policy? And that's not always the same across a whole range of issues. And here, in particular, the constitutional matters at stake are talking about cruel and unusual punishment claims, equal protection, disparate impact, Fourteenth and Fifteenth Amendment claims. And a lot of the dispute there kind of breaks down into a question of those who say we should just focus on the original intent of these provisions as understood at the time and others who take a more living Constitution approach in saying we need to have an evolving standard here. So there's that question on the constitutional side.

 

      And then, on the policy side, there's the question of what -- number one: What's fair? What is the just desserts here? And then, also, on the other hand, what are the outcomes? What is the impact of either disqualifying people from voting because of felonies in certain circumstances -- whether they're in prison? How does that change if they're on probation or parole, and then, of course, if they're off-paper and they're no longer under supervision? So there's a lot of different ways in which this issue comes up. And, of course, part of ultimately what this boils down to is: Who's going to decide? Is it courts, or is it elected officials?

 

      Now, with regard to the Fifth Circuit case that's being heard en banc by 20 judges—which is fairly unusual—in January, this actually is the second case in Mississippi relating to their lifetime ban on people voting with felony -- certain felonies, which is fairly atypical. I think there's perhaps ten states that have a lifetime ban of some sort. And most states that have the restrictions are based on are you still under probation or parole supervision. So the Mississippi law goes beyond that. And, of course, the previous challenge, which was unsuccessful. The Supreme Court decided to leave in place a ruling that rejected a challenge based on equal protection/racial discrimination grounds. But this case is based on cruel and unusual punishment. And the plaintiffs actually prevailed with the 2-1 panel decision. And now that will be heard en banc by 20 judges in January.

 

      And then, of course, there's a historical dimension to this topic as well, and it's undisputed, of course, that a lot of the -- although there were isolated disenfranchisement statutes before the Civil War for just a handful of crimes in a few states, it really exploded after the end of de jure segregation, and so there's certainly a strong racial element to the history of many of these laws.

 

      And then, finally, I would just bring up an issue that I think we'll have time to touch on later in the program, which is the mens rea matter that many Federalist Society folks like myself have been interested in for many years that comes up when people are prosecuted who didn't know they were precluded from voting. And there's been cases here in Texas involving a woman named Crystal Mason, as well as another case where that's an issue. And in fact, her case is still on appeal. So to me, there's just so many aspects to this issue that merit discussion.

 

      So, with that, I wanted to first turn it over to Nicole. And then we'll go to Jeff for each of their opening remarks, and then I may pose some questions. And most importantly, I hope all of you come up with some questions and comments on this multifaceted topic.

 

      So, Nicole, please go ahead.

 

Nicole Porter:  Thank you so much, Marc. And thank you for including me in this conversation. I appreciate The Federalist Society for hosting this discussion with your colleagues and members. And thank you, Jeff. I look forward to talking with you this afternoon as we discuss this.

 

      So I work at The Sentencing Project, which is a research and advocacy organization headquartered in D.C. And The Sentencing Project has actually been marking 2023 as the 50th year of mass incarceration and has been working with partners at the national and state level to acknowledge the collateral impact of mass incarceration, which also includes the pervasiveness of felony disenfranchisement.

 

      I appreciate Marc's opening comments and situating the history around the issue, particularly of the impacts following the Civil War. I'll also say, because of the growth of incarceration in the United States and how it can impact people long after their conviction, particularly in states like Mississippi and Florida—and I'll get into that a little bit—the collateral impacts around felony disenfranchisement are significant in the U.S. And it really sets the United States apart from other industrialized nations and even nations in other parts of the global north and global south. Nations like South Africa, for example, have no restrictions on who can vote with a criminal conviction, even allowing people in criminal custody to vote.

 

      So setting the context around the impact of mass incarceration on felony disenfranchisement in particular, given that this is the 50th year, the prison population peaked in 2009 and began that modest decline in 2010 of roughly 2 percent annually. But we're far from seeing an end to mass incarceration. And at the current rate, it'll take 75 years to arrive at pre-mass incarceration levels in the early '70s.

 

      The impact on felony disenfranchisement is that an estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined roughly 24 percent since 2016. That's because of the range of changes in states like Florida, New York, and California. But that 4.6 million is higher than what the rate of disenfranchisement was in the mid-seventies, where about 1.6 million were disenfranchised at the time. So the growth of the prison population, the growth of the number of people living with felonies in this country has collateral impacts, felony disenfranchisement being one. And there's been extreme growth of the number of people disenfranchised from the electorate because of these policies.

 

      There have been changes over the last 27 years, since 1997. I actually may have that number wrong in my head. But since 1997, there's been about 26 states and the District of Columbia that have actually expanded voting rights to people living with felony convictions. As a result, over 2 million people have regained the right to vote. And it actually started in this window of reform around voting rights expansions with people living in the community, in particular with criminal convictions -- actually started in Texas under the governorship of George H.W. Bush in 1997.

 

      Texas is my home state. I know Marc is there in Houston. And in Texas, they actually ended the two-year waiting period post-incarceration, post-sentence completion, reinstating the vote for about 300,000 people in the state of Texas. People are still disenfranchised in Texas who are what we call "on-paper." That means people under supervision, on felony probation or parole. And so, that continues to be hundreds of thousands of people in the state.

 

      But Texas really kicked off an era of change under Republican conservative governor in the state, expanding voting rights to people post-sentence who were in this two-year waiting period. And that two-year waiting period -- that waiting period policy was changed in a number of other states since 1997, including Nebraska, which lowered its waiting period from seven years to five years, and then a number of other states that did away with their post-conviction waiting periods as well.

 

      Also, in the last several years since 1997, governors, like Kim Reynolds out of Iowa, issued executive orders expanding voting rights to people post-sentence in Iowa, allowing them to participate in the franchise. And in '22, Governor Charlie Baker in Massachusetts signed legislation under their Voting Rights Act there guaranteeing ballot access for people in custody in jail. So those are people, not with felonies necessarily, but it does address the infrastructure necessary to guarantee voting rights for people in jail in Massachusetts.

 

      And similar efforts were adopted this year, particularly with jail access in Nevada and in previous years in Maryland as well as D.C. And this year, reforms to expand voting rights to people after incarceration were adopted in New Mexico and Minnesota, expanding the franchise to some -- to nearly 60,000 people. So a significant number of people are now included in the electorate because of a change in public sentiment in those states, building on the reforms that started in Texas in the late '90s and have continued to help expand the franchise to people living with felony convictions around the country.

 

      So there is confusion of the law given how varied the laws are from state to state and how the laws have changed since 1997. Marc touched on this with the Crystal Mason case out of Tarrant County in north Texas. There was also a man in Harris County—his name is Hervis Rogers—who was the last man to vote in the March '20 primary in Harris County, Houston, and ended up being interviewed by a local alternative weekly there, and in his interview, disclosed that he was on parole. And you can't vote while on parole in Texas, so Mr. Rogers disclosure put him at risk, and he was prosecuted—although the charges have since been dropped—of voting illegally in that state.

 

      Crystal Mason submitted a provisional ballot; I believe in the 2016 election, and she's still fighting her case. She's on supervised release or was on supervised release at the time she cast a provisional ballot in Tarrant County, Texas. That's in the Fort Worth-Dallas area in north Texas. And because she was on supervised release, released from the federal system, so that's their version of post-conviction -- post-incarceration supervision, was charged with voting illegally in that state, and is in Texas, and is still fighting her case.

 

      There are other recent cases in North Carolina and Tennessee, similarly, where people with criminal convictions voted even though they could not because they were on supervision, either probation or parole in those states. And the confusion is that the law has changed. The laws have changed because of state legislatures. The laws have changed because of case law.

 

      North Carolina's a prime example of this. For a window of time in the last couple of years, a state case successfully ended felony disenfranchisement for people post-incarceration in the state of North Carolina, allowing people to vote on felony probation and parole. Well, the recent rulings by that state's high court ruled that lower court rulings were unconstitutional, so essentially reinstating the disenfranchising policy in that state. Because of the confusion between shifting case law and shifts in legislation and other policies that may govern these issues, there's confusion. Mr. Rogers expressed confusion in Harris County during March of 2020 around his voter eligibility.

 

      I know Marc mentioned in his opening comments this wanting to distinguish between mens rea and outright voter fraud. I think that's a significant area to really get into in this conversation and future conversations, particularly because there are issues of confusion. People generally express confusion over their voter eligibility given changes in law.

 

      There are ways to address this that I hope we can find agreement on. I hope there can be support for remedies, political remedies, policy remedies that can help address this confusion given the change from state to state and given the change within states given policy changes over -- that may change from year to year.

 

      For example, Florida -- prime example of confusion, right? There was a major ballot initiative that was adopted in Florida that was the biggest voting right gain in our -- over the last 50 years when Amendment 4 was adopted in 2018 by a majority of Florida voters, expanding voting rights to people post-sentence for most offenses, although it excluded certain offenses, including homicide and crimes of a sexual nature. And then -- so that was an expansion of voting rights, although there are carveouts of certain offenses. That's one example of confusion -- of potential confusion.

 

      Second example of potential confusion is that the Florida legislature further defined what it meant to complete a sentence in the following legislative cycle. So now what it means to complete a sentence in Florida, as many of you may know, is you have to completely pay off your fines and -- your court fines and fees. So sentence completion is also an area of potential confusion for Florida voters with conviction histories.

 

      There has been additional awareness since the Florida legislature defined what it meant to complete a sentence that many people don't know if they've even satisfied their fines and fees. And the courts can't even tell people if they've completely paid off their fines and fees. So one solution around that has been to build infrastructure -- has been to recommend the building of infrastructure within Florida to confirm voter eligibility based on crime or conviction, because again, there were carveouts in that ballot measure. And then, two, people may have not completely completed their sentence as defined by the legislature given that fines and fees obligation.

 

      So leading up to the midterm election cycle, there were a number of arrests in Florida in August of '21 -- '22, which really highlighted the fact that there's confusion -- that people who tried to participate in previous elections didn't -- or at least profess that they didn't know at the time of arrest. There's video footage around this. So getting clear on the law, getting -- supporting people who want to participate in democracy and the electorate with knowing whether or not they can would be a solution that I hope there can be consensus on, and supporting states and building out that infrastructure to confirm people's eligibility is one solution. And I know there's legislation that's been introduced in Florida during the last legislative session that would establish infrastructure around that database that people with conviction histories can confirm whether or not they're eligible to vote.

 

      A similar change that can hopefully support people in knowing their eligibility is voter registration support. So the state of Michigan just -- the governor just signed legislation allowing automatic voter registration at the point of exit for people in prisons. That's the first state that we're aware of or that's been recognized in doing -- in supporting automatic voter registration policies for people exiting prison.

 

      Also, a practice around voter eligibility notifications for people with felony conviction histories. In Maryland, when the state law changed in 2016, it was included in that reform to notify people who had been disenfranchised but who were nearly eligible to vote because of the change in law that they can vote. And even though that was a provision in the law, there were still confusion around new -- around eligibility for supposedly new voters. And there was even confusion at the local level amongst election officials amongst this. So having formal state notification of voter eligibility can really help address confusion and hopefully minimize risk of prosecution, given the possibility that people face prosecution for wrongfully voting or illegally voting.

 

      I know we -- I think I just have a few minutes left before I turn it over to Jeff. So I just want to wrap up with some other comments here, which is: This is a public safety strategy for people who are interested in connecting and building on public safety as a way to not just address crime and reduce the number of people who can commit crime—at risk of committing crime—but also to reduce harm. So people with justice involvement, the studies have shown that civic engagement and participating in voting is one of a range of practices that can reduce future justice involvement; that can reduce their future likelihood of arrest. That makes sense. If you're voting, that's a signal of being invested and involved in your community, just like if you are an active community leader, if you're -- have gainful employment. These are the circumstances that can reduce people's future risk towards criminal offending. So public safety strategy is deeply connected to this. And voting is one way, amongst other solutions, that can help improve public safety.

 

      And I'll just say that -- reinforce again that the United States is an outlier when it comes to disenfranchising people in the community. It is also an outlier in disenfranchising people who are in criminal custody. And so, because of that, we should understand that vote is a badge of dignity and personhood for every person participating in the electorate, including those in prison, in jail. And I hope that there can be consensus and support on that given the idea that personhood and supporting people's personhood can help not just support public safety but also have them invested in the community even when they're in criminal custody, even when they're in prisons and jails.

 

      And, with that, I'll stop my comment to turn it over to Jeff and look forward to the Q&A and any feedback from folks in the audience. And thank you again, Marc, for inviting me to participate.

 

Marc Levin:  And thank you.

 

      Jeff.

 

Jeff Jacoby:  Thanks so much for having me here today. It's a little bit daunting for me to be listening to your introduction, Marc, and to Nicole's comments. And I guess I should just warn our viewers that, unlike the two of you, I don't come to this as an expert who is deeply enmeshed in the details of incarceration policy or voting rights policy.

 

      I'm a newspaper columnist. I'm an opinion writer. I take the 30,000-foot view. My focus is on public policy, on what makes for a good way to organize a society, and to comment and to be aware of what's happening in the news and in the country, and to relate it to issues that my readers of the Boston Globe and elsewhere—we're in the internet world. I keep forgetting that—will find interesting and timely.

 

      I will say, listening to both of you, I get the sense -- certainly listening to Nicole, I got the sense that there is an underlying proposition—Nicole will correct me if I'm wrong—but I gather very strongly from what she says that there is a fundamental philosophical belief that anything that expands the franchise, anything that enables more people to vote, whatever their circumstances, whoever they are, whatever their identity, is a good thing. I've never accepted that. I've never been among those who think that more voter turnout, for example—higher voter turnout—is the ultimate litmus test for gauging the health of a democracy. And I certainly don't think -- I don't approach this issue with that as my guiding light.

 

      Since I'm talking to you from Boston, let me just begin by taking our viewers back ten years to a terrible moment in Boston history. Ten years ago, in 2013, Dzhokhar Tsarnaev, together with his brother, Tamerlan—everybody in Boston remembers, and many people around the world will—detonated two bombs near the finish line of the Boston Marathon. He murdered three people, including a little boy named Martin Richard. He left hundreds of others wounded or maimed for life. Two days later, Tsarnaev murdered an MIT police officer as he was attempting to escape. Eventually, he was found. He was prosecuted. He was convicted. He was sentenced to death. His death penalty was appealed all the way up to the Supreme Court, which upheld it. He's now being held in the maximum security federal prison in Colorado, one of those supermaxes.

 

      It seems almost trivial to mention it in the context of his horrific crimes, but Tsarnaev, this barbaric Boston Marathon terrorist, doesn't have the right to vote. I have no problem with that, and based on all the polls that I've seen, neither does the vast majority of Americans. But there are some people who think Tsarnaev should be allowed to take part in elections.

 

      And I was -- I was drawn to this issue in the first place when Senator Bernie Sanders, as a candidate for president the last time around, declared at one of those town hall meetings that Tsarnaev and every other violent criminal should be allowed to vote, even while in prison, even when their term has not been served, and even behind bars since, in Bernie Sanders' words, "The right to vote is inherent to our democracy even for terrible people," to which I say, "No, it isn't."

 

      Convicted criminals are locked up because they are deemed unfit to live among their fellow citizens or to join in normal civic life. Sometimes they're deemed to be in that status for the rest of their lives if they get a life term. More often, they're deemed to be in that status for a period of years. The point is that, because of the harm they have caused to their victims, or because of the damage that they've inflicted on society or because of the danger, the continuing danger that they pose to the community, we, as a society, as a criminal justice system, as a constitutional republic, disqualify them from being treated as legal and political equals.

 

      A person who is convicted of a crime and sentenced to prison loses certain rights. That's definitional. That's what it means to be sentenced to prison. You lose the right to your liberty, first and foremost. You lose the right to free assembly. You lose the right to bear arms. You lose the right to privacy. You lose the right to travel. You lose the right to set your own schedule, and in many places, you also lose the right to vote. There doesn't seem to me to be anything strange or unusual or shameful about that.

 

      Here in Massachusetts, this isn't exactly a new issue. As you and Nicole know, and I'm sure many of our viewers know, there are two states where even in-prison felons are allowed to vote. One is Maine. The other is Bernie Sanders' state of Vermont. But there used to be a third, Massachusetts. Felons here, even lifers, used to be allowed to vote in Massachusetts prisons, even to organize voter registration drives. And when a group of inmates at the state prison in Norfolk, most of whom were first- and second-degree murderers, launched a political action committee—I think this was back in 1997 or 1998—Massachusetts finally realized what was going on, came to its senses, and joined the rest of the country.

 

      In 2000, the issue was on the state ballot, and by a two-to-one ratio, voters in this state, in this liberal blue state of Massachusetts, amended the state constitution and took away the franchise from criminals who are serving terms -- from felons, I should say, who are serving terms in prison. That brought Massachusetts into line with nearly every other state and with common sense.

 

      It seems to be clear that people who are imprisoned for breaking laws are not entitled—either morally nor philosophically nor democratically—to a say in making laws. This is why in 48 of the 50 states now, people who are locked up for felonies—for murder, for rape, for armed robbery, for arson—aren't allowed to participate in elections. This is why there is very little controversy about that principle among the general public. Whatever controversy there might be in legal circles or in activist circles, most Americans have no problem with the idea. I think when Bernie Sanders made his comment, the polls then showed that 75 percent of people who were asked about it disagreed with him.

 

      Society punishes convicted felons by denying them control over their own affairs. It would be irrational to say that society tells a criminal, "You may not have control over your own affairs for the next 10 to 20 years or 20 to 50 years or for the rest of your life, but we will permit you to exercise control over society's affairs through the vote." If they're stripped of the power to make choices for themselves, what could be more illogical than to give felons the voting power to help make choices for society?

 

      And not only in my view is it illogical, but it's unfair to allow incarcerated felons to have a say in shaping criminal law is just -- it almost defines injustice. Rapists should not be allowed to dilute the vote of rape victims. Somebody who's sent to prison because of election fraud has no business taking part in elections. A terrorist, like Tsarnaev, shouldn't be allowed to vote for lawmakers who will have, as part of their responsibility, making laws and policy about terrorism.

 

      As I've read about this subject, I see a lot of talk about disenfranchisement as an aspect of inequality or racial discrimination or suppression. And this seems to me to be a very disrespectful way to approach the issue and a very disingenuous one. There's no insidious racial motive in denying felons the vote. It doesn't discriminate against people of color as a class. The only population it discriminates as a class is convicted criminals in the states -- in the 48 states where they are discriminated against in this fashion.

 

      But for those who do insist on focusing on the color, on the race of people who are disenfranchised because they're convicted and serving sentences behind bars, I would only point out that the victims of crime are disproportionately people of color in this country too. And its victims, more than anyone else, who will be harmed the most if those who have preyed on them, those who threatened them are given electoral power. To require convicted criminals to pay their debt to the public before they can join in full civic life, that's not suppression. That's not voter suppression. That's part of the process of holding violent, dangerous, or reprehensible felons accountable for what they've done. No prisoner is disenfranchised because of his or her skin color. They're disenfranchised, regardless of their skin color. And it seems to me that that's a crucial distinction.

 

      There's a lot to talk about. The constitutional argument seems to me really both curious and obvious. I was reading about the Mississippi case that Marc and Nicole alluded to, the idea that telling a prisoner that you're not allowed to vote amounts to cruel and unusual punishment it seems to me stretches the terms cruel and unusual and punishment in the -- it's such a stretch that somebody's going to dislocate a muscle from doing it.

 

      In most elections in this country, most people don't vote. Most of the time, most Americans choose voluntarily or don't even think about voting. They choose voluntarily not to cast a ballot. To say that there's somehow a cruel and unusual punishment involved in saying to someone who's convicted of a serious crime and is behind bars that you can't cast a ballot that that rises to the same level as torture or as being locked in a primitive punishment cell -- to say that that's cruel and unusual punishment really just degrades the meaning of those words.

 

      But even beyond all that -- I'm not an expert on the subject, but I've got my law degree. I've read the Fourteenth Amendment, and I know that the Constitution explicitly provides that the right to vote may be taken away from people, in the words of the Fourteenth Amendment, "for participation in rebellion, or other crime." Lawyers and judges and justices and advocates can always find ways to torture the meaning of the constitutional language to get it to mean all kinds of things, but it seems pretty clear to me the Constitution itself provides the authority for denying the franchise to people who have been convicted of crimes.

 

      Nicole mentioned, in the course of talking about what's going on in a number of states, that there is -- she said a lot of confusion given how varied the laws are. That's true, but we are United States. We're not the united people. We are a nation made up of states, what Justice Brandeis called the little laboratories of democracy. I think that's a feature of our system, not a bug. And it's not written anywhere that every state has to have the exact same voting rules, the exact same election rules, the exact same qualification rules.

 

      This is a great area for the states to experiment. Maine and Vermont may choose to let even Dzhokhar Tsarnaev cast a ballot. Mississippi may choose to let nobody who's behind bars or has been behind bars choose to vote. Great. Let a thousand flowers bloom. Let the public policy debate be debated. Let the little laboratories of democracy do their work.

 

      I would say keep this out of the courts. Let it be worked out through the legislatures as a matter of the people represented -- as represented through their lawmakers making decisions for themselves about what they think works best and what makes most sense given their view of the good society. All of which is the way this country has operated for the past 225 years. I see no reason why this should be any different.

 

      And with that, why don't we throw this open and see where the conversation goes?

 

Marc Levin:  Well, I'd like to actually pose a question to each of you. And these were very insightful comments.

 

      And let me ask you first, Jeff, as you brought up these other rights you lose when you're incarcerated in terms of travel, all sorts of liberties, but what about the argument that those are intricately connected to public safety, whereas the right to vote, just by the fact that somebody -- it's not like leaving the prison, right, the fact that -- or even if you're on probation or parole, the fact that you vote doesn't endanger somebody else? It doesn't conflict with the conditions of your supervision, that sort of thing. Do you make any distinction on those?

 

Jeff Jacoby:  Sure. Well, first of all, there are rights that you lose when you're locked up that aren't directly related to public safety. Your reading material can often be restricted. Your work schedule is restricted. It doesn't really affect public safety, whether you're sent to hammer out license plates or whatever they have to do at ten o'clock in the morning when you'd prefer to be doing it at ten o'clock at night. So not all restrictions that are imposed on incarcerated people have to do with public safety.

 

      But beyond that, the broader point, yes, I would say that giving someone the franchise -- and this is the reason -- I won't speak for Nicole, but I will assume that she thinks that voting is empowering. I think you may have used—if I didn't hear it from you directly, I've seen it on The Sentencing Project website—"the franchise is empowering." Giving criminals power when society has determined that, right now, they aren't fit to be in society; they aren't fit to be exerting an influence in society. They aren't fit to be treated as equals with the rest of us in civic matters. I would say that does threaten public safety.

 

      There is a reason why the franchise is taken away. Part of it might be the stigma of saying, "You've committed a serious crime, and this is one of the ways in which we show it." But part of it, I think, is also the very defensible and logical philosophical ground that people who have broken laws should not be given the power to help make those laws, and that by imposing that restriction, we help keep society safer.

 

Marc Levin:  Well, let me press you, Nicole, on this kind of social contract theory. The way I view it, as Jeff outlined, is it kind of goes back to the idea of Thomas Hobbes that, when you violate the social contract, you kind of get kicked out of our circle. Whether it's for a while or permanently is certainly a matter of debate. What's wrong with that notion, at least as it relates to people who are in prison, that they've -- we're now going to kick them out of this circle based on what they did?

 

Nicole Porter:  Yeah. The concept of civil death was brought to this country by European colonialists, right? So it is a history. The felony disenfranchisement and the concept of civil death is a practice that even predates the founding of the country.

 

      I will say what is unique about felony disenfranchisement and what continues to separate the United States apart is the racialized history behind this law. And that history is clear when you look at the constitutions in Mississippi, Alabama, Virginia that have been confirmed by the Court. So there is a reason to address these within the courts because it can allow for an accounting of history and accountability given the way these laws emerged following the Civil War. It was clear that the concept of felony was used as a proxy to disenfranchise black men, in particular at the time, from the electorate. That is clear in the Constitution -- the constitutional history of those states.

 

      And so, in this country, given that the laws vary from state to state, it is important to have states be able to make laws that govern who can participate in the electorate. But it's also important to recognize history. And the thing is is that prisons—while folks are isolated from the general public, from the general community—those are still communities. People still participate in the community, particularly life-long prisoners who can age into different rights that allow them to go into the community and participate in community-based efforts.

 

      I was in Louisiana before the pandemic, participated in a discussion at a church outside of New Orleans, and prison officials brought life-sentenced prisoners to this community discussion where we talked all day. These were people convicted of murder and very serious offenses in the community sitting shoulder-to-shoulder with other community members, including academics, legislators, a Republican, and Democrat, talking about the issues with the criminal legal system in Louisiana. Those prisoners had world views and perspectives that helped inform that discussion, but they can't vote while incarcerated. And they went back and slept in their prison cells that night.

 

      Other incarcerated people engage in other rights—have other rights—despite the loss of liberty. They get published in newspapers. I was just reading a series of articles by incarcerated writers last week that talked about their experiences inside of prison. One out of Illinois that talked about his inability to participate in education programs while in prison in Illinois. Another gentleman out of Washington State talked about the loss of education programs in a prison that he's incarcerated in. Their voices, supported by the First Amendment, allows their perspectives and their experiences to be brought into the light. And participating in the franchise, not just for people in the community but people in prison, is an important part of our society and is an important part of our community.

 

      So I think there's a range of issues that should be -- continue to be addressed and dealt with as a part of just arguments. But I just wanted to highlight those and the fact that, even if people are in custody, they're still a part of the community, even despite the long history of civil death and holding people accountable when breaking the social contract.

 

Marc Levin: Well, do we have any other questions? I have some more, but if there's some from the audience, I think it would be great to --

 

Nicole Porter:  There's a lot in the audience.

 

Marc Levin:  Okay. Great.

 

Nicole Porter:  Do you want to pull them out, Marc?

 

Marc Levin:  Yes. I'm having trouble. I see the chat, but I guess I'm not seeing the questions here. There's some --

 

Nicole Porter:  Okay. Well, there -- the first one that I see is from --

 

Marc Levin:  Okay.

 

Nicole Porter:  -- Rod Sullivan. He said, "Should people with felonies have to pay victim restitution prior to being permitted to vote?"

 

      And I'll just say that, again, that ranges from state to state. In some states, certainly, satisfying restitution and other court fines and fees is a part of the enfranchisement policy when people complete their sentence.

 

      I -- The Sentencing Project supports—and I also support this—that that can limit people's full participation in the franchise. People who are eligible to vote -- well, people who have -- are formerly incarcerated have to do a range of other things to prove that they're good neighbors and good citizens. They have to pay taxes. They, obviously, can't reoffend and are at further risk of criminal legal sanctions, sometimes with enhanced sentences. So there's all sorts of incentives that try to work at preventing future law breaking.

 

      So the idea that you would further isolate people from the electorate with -- would, in sense, be a poll tax with requiring restitution and other fines and fees obligation is something that I think would inhibit that public safety benefit from including voting with other recidivism reduction practices. And so, I don't think it would be the best thing. So I'll just leave it there.

 

Jeff Jacoby:  No. My general approach would be this, too, is something that states can work out for themselves. Different states will have different approaches. Lawmakers in different places will have different attitudes.

 

      I take Nicole's point that in some places, even somebody who has served the term won't have the financial wherewithal to be able to make any kind of financial restitution. And I can certainly see an argument that that's the -- it's not -- it's not quite a poll tax. It's almost adjacent to it.

 

      But I'm comfortable saying let states work it out for themselves. If some states want to have a rule where once you've -- whatever the state requires, by way of restitution, once you've completed that, if that's part of what is -- falls under the rubric of paying your debt to society, and then you can vote, okay. Let the state make that decision.

 

      If other states say, "No. We're going to take a hardline. Once you've been convicted of this long list of terrible, violent crimes: rape, murder, armed robbery, arson, whatever it is, you're -- even after you've served your term, you're never going to get to vote." I think states should have the right to do that as well. It doesn't seem to me that we need to have one, single, federal, national standard that applies to everyone. Certainly, it doesn't rise to the level of a constitutional mandate.

 

      I tend to believe that over time, when one state hits on a system or on a remedy that seems to work out best, other states will tend to fall in line, which is one reason that I can look with some equanimity at my neighbors here in New England up to the north in Maine and Vermont and see that, while they've got their own quirky little rule about allowing even convicted incarcerated felons to vote, no other state is following them. To me, that says that particular lab test hasn't been very successful. Other states are looking at the results and realizing that's not something that they want to follow.

 

Nicole Porter:  Actually --

 

Marc Levin:  Well -- oh, go ahead.

 

Nicole Porter:  -- I will say, while the laws haven't been adopted yet, there is an active conversation to try to expand the vote to people in prison regardless of their crime of conviction.

 

      There's actually public support for this. A majority of voters—through a poll that The Sentencing Project conducted with Stand Up America, State Innovation Exchange, and Common Cause—found that a majority, 50 percent -- 56 percent of likely voters actually support expanding the vote to people completing their prison inside of jail and prison. So that's encouraging and suggests that potential for expanding and building on public support for expansion of the franchise.

 

      I'll also say that two jurisdictions have expanded the franchise. You mentioned the change in Massachusetts in the early 2000s. Well, in the '80s, Puerto Rico actually expanded the franchise to people completing their sentence in prison. And there's been some very good outcomes in terms of voter participation in prisons in Puerto Rico.

 

      Washington, D.C.—where I live—the District of Columbia, expanded the vote to people with felonies in custody locally and in the Federal Bureau of Prisons, which has created an entire conversation around implementation and what it means to guarantee ballot access for people with felonies in federal correctional facilities and also in the local D.C. jail.

 

      And I'll also say that there was pending legislation this year in a number of states, including Oregon, Illinois, and Connecticut, that would expand the vote to people with felony convictions. And also, a constitutional amendment in Virginia that would also end felony disenfranchisement there. So we have probably a long way to go before states affirmatively change their laws to expand the franchise and end felony disenfranchisement, but there is and are active efforts to do that.

 

Jeff Jacoby:  Nicole, can I ask you—if it's all right to have a little bit of back and forth—it seems to me that lumping all offenses together under one umbrella kind of muddies the issue and isn't that helpful. And I wonder if you and I might be able to find some agreement in saying that, when it comes to certain kinds of offenses, then one kind of rule would be appropriate, and when it comes to lesser offenses, another kind of rule.

 

      If somebody went to prison 25 years ago in Mississippi for writing a bad check, I can certainly understand the argument. Hardliner on crime and punishment, though I might often be, I can certainly understand the point of view that would say, "Look. That was one nonviolent offense a long time ago. It's over and done with, and there's no reason why you shouldn't be able to take part in elections now if you want to."

 

      On the other hand, Dzhokhar Tsarnaev, no matter what happens, should never be allowed to vote would be my view. There are some crimes—certainly, the worst crimes of violence—the ones that end up causing a life, crimes like rape, crimes like arson, maybe massive financial crimes as well, embezzlement. I'm just wondering if you and I might be able to agree that there are some crimes that are so severe that it's perfectly understandable and logical and even appropriate for society to say, "When it comes to voting, you have now disqualified yourself permanently." Whereas somebody like me might say, when it comes to other kinds of offenses, "Even though they -- even if they were wrong and even though you shouldn't have done them, you've paid a debt to society. And we really are prepared to expunge your disqualification, at least when it comes to voting."

 

      Is there room for a -- did our Venn diagram have some area where we can try to—how do you do a Venn diagram on Zoom? I'm not sure—where we can overlap a little bit?

 

Nicole Porter:  I don't know about that. But what I do know is that I think where we could agree is building on an infrastructure that confirms eligibility given the change in law within states and the distinctions between them. There are currently states that continue to disenfranchise people based on offense that create very complicated laws and contribute to people not understanding the law and putting people at risk of arrest and prosecution for voting wrongfully. So where I think we could agree in the Venn diagram is that the state should create processes and practices that can confirm people's eligibility based on disenfranchising practices.

 

      For example, Mississippi, the state of Mississippi—I mentioned that state earlier—the laws that disenfranchise people are actually enumerated in the constitution and have grown over the course of that state's history since it reconstituted itself following the Civil War. Not just are residents unclear about the law, but so too are election administrators and local officials. So I think where we can agree is that there should be better information that is formally sanctioned by the state of Mississippi to notify its residents and to confirm their eligibility.

 

      The same thing should be true in Florida. The same thing should be true in Tennessee and any state where disenfranchisement can vary based on the offense that people whose -- based on people's crime of conviction.

 

      So I think we can find some agreement there. And I would really appreciate, Jeff and others within The Federalist Society, to continue to talk about that and find ways to support those conversations in states where having state confirmation of voter eligibility might be a political remedy.

 

Jeff Jacoby:  Okay. I don't mean to -- I'm don't mean to -- I don't mean to be like those guys in those alleged debates who are running for president. But I still—I don't know—would you or would The Sentencing Project -- would you feel comfortable being able to -- saying, "Whatever else we might argue or debate about when it comes to this issue, we can all agree that the Boston Marathon bomber should not be participating in elections." Is that something that you or your organization would ever agree --

 

Nicole Porter:  The Sentencing Project believes that you should not lose your right to vote when in prison --

 

Jeff Jacoby:  No matter what?

 

Nicole Porter:  -- or at any point of your involvement with the criminal legal system.

 

Jeff Jacoby:  Yeah. See, I just can't say that. I can see --

 

Nicole Porter:  So -- and I can understand that. I hear you with that.

 

Jeff Jacoby:  I can see all kinds of things that we can --

 

Nicole Porter:  But I also want to focus on the fact that I do think that there are points of agreement. But I hear you, and I hope you hear me, and that The Sentencing Project is clear in that we support the vote for anyone regardless of the crime of conviction.

 

Marc Levin:  Well, yeah. That's a very -- I think that it's really -- the straw's kind of -- it makes people understand there's a very wide spectrum of what we've been talking about, obviously, ranging from relatively drug possession, right? Small amounts are a felony in many states, and then, of course, looking at whether somebody's in prison or on parole or even off-paper. So there's a very wide spectrum to this topic. But it's one that really, I think, forces us to think about what our conceptions are of democracy.

 

      And obviously, there were a couple of questions here about our history as it relates to race. I don't know if either of you want to address that. Someone pointed out that Michigan and Vermont are primarily white states and that -- there was another question about the fact that these disenfranchisement laws took off after black people were given the right to vote. I also see a question about those illegal immigrants who wouldn't be able to vote anyway on the grounds that they're illegal immigrants. But I do -- do either of you want to tackle any of those questions?

 

Jeff Jacoby:  I've got a couple of thoughts. One, first of all, Maine and Vermont, not Michigan and Vermont. Maine and Vermont, they are predominantly white, but then, most states in America are predominantly white, at least by percentage. What distinguishes those two is that they are the safest states. They have the lowest crime rates in America. And I can -- I guess I can understand why lawmakers in -- if you live in a small, safe New England state—where you're not especially worried about empowering felons or people who are behind bars—why for them that just isn't top of mind.

 

      I reiterate what I said before. I don't think that anyone is deprived -- I don't think that any felon is deprived of the vote because of race. I think that felons are deprived of the vote regardless of their race, and that that's true no matter what the racial breakdown in any given state prison system is.

 

      But I think it's -- it also worth noting that there are -- you mentioned illegal immigrants. One of the -- one of the markers of citizenship in this country is that you can't -- is the right to vote. I know that there is discussion some places. There was a big brouhaha in New York City during the past year about allowing people on green cards or people who are illegal, who don't even -- maybe don't even have the green cards to be able to vote. But by and large, one of the markers of citizenship is that you get the right to vote.

 

      Noncitizens in America would -- for all intents and purposes, don't have the right to vote. Minors, for all intents and purposes, don't have the right to vote, not because they've done something wrong, but because that's the way the system is set up. That's because voting is a prerequisite that goes with citizenship. It's a prerequisite that goes with being an adult. And I would say also it's a prerequisite, or it's at least reasonable for lawmakers and policymakers to say that it's a prerequisite that goes with being along -- with being a law-abiding citizen.

 

      If we're going to not allow upright, honest, hardworking noncitizen immigrants to vote, if we're not going to allow well-meaning, idealistic, patriotic 15-year-olds to vote, it doesn't seem to me to be a terrible thing to say, "We're also not going to allow rapists to vote, especially those who are still serving their terms, who are still under supervision of the law."

 

      It's a common place to say that the right -- that you have a right to vote or that voting is a right in a democracy, but honestly, it's a privilege. The Constitution repeatedly specifies things that you may not be denied that privilege. You cannot be denied the privilege of voting because of your race or if you're 18 years old, because of your age, or because of your sex if you're -- ever since the Nineteenth Amendment, but it also makes clear that that privilege can be denied to people because of rebellion, their participation in rebellion, or crime. And given the large body of people who can't vote despite having done nothing wrong—but just because you can't vote if you're not a citizen, you can't vote if you're not an adult—I don't see why people who are convicted of crimes should be assumed automatically to be of a higher status.

 

      Again, I come back to my base point, which is I don't propose to lay out a rule for the entire country to follow. I'm happy to see the states debated on the -- debate it among themselves, but just as a matter of philosophy, as a matter of ethics, it doesn't seem to me that somebody who has committed a crime deserves to be treated at a more favorable -- in a more favorable position than somebody who just doesn't yet happen to have become naturalized.

 

Nicole Porter:  I agree. The Sentencing Project is partnered with pro-democracy groups that are working to support the expansion of the franchise to residents of this country in different categories. So that's work for our partners to be doing. But you raise good questions there.

 

      And if you're a resident, if you're living in community, the idea that you should have a role in voting on who is governing you is a valid question to engage in, not just for people with criminal conviction histories, whether or not they're in custody or in the community, but also noncitizens and also young people. And so, those are conversations -- robust conversations that are happening with pro-democracy groups around the country. And that is not work that The Sentencing Project is engaged in. But we are partnering with those pro-democracy groups to support voting rights for people with criminal conviction histories, and then those coalitions acknowledging the vote for other residents in community is a part of those conversations.

 

      Again, I think there's multiple Venn diagrams that we could really get into. And I feel like there's some agreement there.

 

Marc Levin:  Well, no. It's a fascinating issue. And I think one of the areas that could be studied is voting patterns of people, whether they're in prison or otherwise, because I know certainly, Jeff, you brought up kind of a pecking order of offenses.

 

      And I think we all have at least anecdotally understand that even within prisons, certain individuals, especially those who have committed child sex offenses, for example, they're looked down upon by others that are incarcerated. And so, you might be surprised. I know there's -- what limited research I've seen has shown that a fair number of people who are incarcerated have very wide-ranging political views. And some of them, they have rather tough on crime views maybe when it comes to crime that they didn't commit. But nonetheless, it's fascinating.

 

      And, of course, in Europe, people -- when I was visiting prisons there, I did ask why because you can vote in France and Germany if you're in prison. I was at --

 

Jeff Jacoby:  Not the U.K., right?

 

Marc Levin:  I don't know about the U.K., but I kind of asked, did candidates come and campaign in prison, and I -- it didn't sound like that occurred that much. But that raises the other whole issue of should we have campaigning in prison on the other end of the ledger for this, so there's just so many. It's like an onion. Each time we peel a layer, there's another layer of questions.

 

Nicole Porter:  And I would welcome the opportunity to continue the conversation with you, Marc and Jeff, in spaces like this.

 

      And I see Chayila, so -- but would welcome the opportunity to continue the dialogue.

 

Jeff Jacoby:  Well, thank you, Nicole. This was a great conversation.

 

Thank you, Marc.

 

Nicole Porter:  I agree. Thank you.

 

Marc Levin:  Thank you.

 

Chayila Kleist:  Yeah, I'll second that. Thanks.

 

      On behalf of The Federalist Society, thank you all for joining us today. This was a fantastic discussion, and I know you could probably go on for another hour, but we'll have to wrap it there.

 

      Thank you, also, to our audience for joining and participating. We got a lot of questions. I know we didn't get to them all, but we really appreciate you being here.

 

      If you have listener feedback, we welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming virtual events.

 

      With that, thank you all for joining us today. We're adjourned.