TCS Daily

Felonious Funk

By Glenn Harlan Reynolds - March 16, 2005 12:00 AM

Last week, Doug Kern wrote about efforts to restore voting rights to felons. Kern made a good case that what a lot of these efforts are really about is making felonies look a lot more like misdemeanors, by reducing the penalties, and the social stigma, involved:

        "A misdemeanor is a less serious kind of crime. It can entail some consequences 
        -- a fine, community service, jail time -- but nothing life-changing; 
        nothing that signifies a permanent rupture between a citizen and the state. 
        There are no permanent ruptures in Misdemeanor Nation. In fact, there is no 
        permanent anything in Misdemeanor Nation.

        "In Misdemeanor Nation, criminals need to vote in order to be rehabilitated. 
        To deprive them of that right would be cruel and unusual punishment, 
        and thus unconstitutional. Admittedly, the proof for that contention is 
        wanting, but if we leave Anthony Kennedy alone with the Uruguayan 
        Constitution and the annotated case law of Sierra Leone, he'll come up with 
        a rationalization.

        "In Misdemeanor Nation, the vote is an inalienable right. You don't need virtue 
        to vote. You don't need to obey the rules of society to vote. If you have 
        a pulse and an eighteenth birthday, you get to vote."

But Kern also notes that we've created a lot of felonies, and that's a point I'd like to expand upon.

Felonies were once a fairly rare class of crime, a class that generally carried capital punishment as a more-than-theoretical possibility. A felon was, by virtue of his heinous acts, an outcast from society. Even if permitted to live, he was expected to bear the mark of his iniquity for life, in the form of lost civil rights like the right to vote and the right to bear arms. To be a felon was to be a permanent outcast within one's own society.

But felonies aren't so few anymore. New felonies are being created all the time, often for activity that seems, morally, not terribly awful. The currency of felony has been inflated, and has thus, inevitably, lost value. In my home state of Tennessee, we tried to deal with this problem some decades ago by creating special "Class X" felonies, with stiffer punishments, tighter requirements for parole, and so forth.

The issuance of new currency is a common response to runaway inflation. It's also a futile one if the authorities just keep the printing presses running. That's what happened in Tennessee, as lawmakers vied to designate more crimes as "Class X" felonies in order to demonstrate their toughness on crime, until the whole enterprise became a legislative joke.

It's been pretty much the same story everywhere else. Where once "felony" meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be "wetlands." As the title to a recent book edited by Gene Healy notes, we've achieved the criminalization of almost everything.

Which means, in fact, the criminalization of almost everyone, too -- if you haven't been convicted of some felony or other, it's probably because no prosecutor has tried to put you away, not because you haven't committed one, whether you realized it at the time or not.

With felonies created so promiscuously, it's no surprise that people are upset that in the process we've created so many permanent outcasts. Separating a few people from society may be salubrious, but as the numbers grow, so does the stress, and the numbers have grown a lot.

Worse, it's going to be harder and harder to hold the line, as Kern wishes to do, when the legislature is busy trivializing the very notion of felonies. There's always somebody, when inflation is running wild, to complain that what we need is a good five-cent cigar, but it's the inflation that's the problem, not the cigars. And inflation is always the result of insufficient self-restraint on the part of government. So, too, with crime.

There are some things we could do about this. I think that there's a good argument -- under Due Process and the Eighth Amendment -- that designating minor examples of malum prohibitum as felonies ought to be unconstitutional. (Perhaps locking up Justice Kennedy with a copy of the U.S. Constitution and the Magna Carta, might accomplish that . . . .) If executing someone for a heinous murder just because he was under 18 when it was committed is unconstitutional, then surely separating someone from citizenship for minor violations of tax or firearms laws should be too much.

I also think that empowering juries to reject prosecutions that seem unfair would help. But ultimately, the only cure for inflation is discipline on the part of the authorities who are responsible. The tendency to weaken the disabilities imposed by felonies that Doug Kern decries isn't a positive development in itself. But it is evidence that the problem is starting to bite. With that happening, a more serious solution may become possible. Who will play Paul Volcker this time?



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