TCS Daily

Misdemeanor Nation vs. Felony Nation

By Douglas Kern - March 9, 2005 12:00 AM

In the world where the enfranchisement of felons seems like a good idea, no crime is ever really that bad. No sin can ever disqualify a man from full civic participation. A little time in the hoosegow squares all accounts. Felons are decent people just like you and me; they made mistakes, they paid for their mistakes, and they're ready to resume their lives. Only a churl or a prudish killjoy would deprive these poor souls of their rights, merely on account of their prior actions.

This is Misdemeanor Nation.

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.

I come from Felony Nation. I come from a place where the right to vote is a presumption that intolerable behavior can rebut.

In Felony Nation, we have these crazy things called "felonies." Here, felonies are crimes that are so severe that they irreversibly corrode the social fabric. Felonies create harm so profound that no jail or prison term can compensate for it.

You can tell that you're in Misdemeanor Nation when you hear glib talk about felons having "paid their debt to society." How does one account for that debt? What is the price of children seeing violence in their home? What is the interest rate on decent people being afraid to walk the streets at night? How does anyone pay back the cost of small business in troubled neighborhoods shutting down because the theft of expensive merchandise has become unbearable?

In Felony Nation, prison sentences don't bear the slightest resemblance to the "debt" that any criminal owes society. In Felony Nation, sentences are a trade-off between the protection that society wants and the cost that society is willing to bear in order to enjoy that protection. If felons truly had to pay back what they took from society, they'd never be released.

Felonies don't create debts. They create wounds. And some wounds don't heal.

In Misdemeanor Nation, we are told that criminals should not be held accountable indefinitely for their youthful indiscretions and one-time-only lapses in judgment. In Felony Nation, men are the sum of their actions, "youthful" or otherwise, and those who inflict permanent harm must be prepared to accept permanent sanctions. Adults sometimes make irreversible choices, for good or ill; when society refuses to acknowledge the rights of men to act in unchangeable ways, it diminishes their freedom, rather than enhancing it. In Felony Nation, when your actions announce that you reject a just social order, the law takes you seriously enough to accept your rejection.

In Misdemeanor Nation, the universal franchise is based on the belief that all people are basically good and fit for participation in a free society. The basic decency of citizens qua citizens entitles them to voting privileges irrespective of their prior actions.

Conversely, in Felony Nation, the universal franchise is a legal fiction, albeit a useful one. Citizens who grow up in a free society are presumed to have acquired the habits of virtue and self-control that make freedom possible. Society assumes that intermediary institutions -- families, schools, and local associations -- impart the lessons and qualities that permit an open, lightly regulated society. And society makes this assumption for all citizens, regardless of background or ability.

This assumption is largely a lie. A society with a universal franchise is a society that extends the vote to innumerable idiots, scoundrels, fools, jellyfish, and nincompoops. But we accept the Voting Bloc of the Damned for two reasons: first, we don't trust the government (or any other entity) to fairly and justly distinguish between capable and incapable voters; second, we believe that the very importance of voting compels borderline idiots to take their duties as citizens more seriously. Put another way: we'd rather suffer foolish voters than a foolish government, and we hope that knuckleheads will grow into the role of responsible citizens if we let them wear the mask of respectable citizenship long enough.

But in Felony Nation, felons corrupt the fictions upon which the universal franchise is premised. How can anyone impute virtue to a citizen who has been found beyond a reasonable doubt to have failed in meeting the most rudimentary demands of responsible life?

In both nations, felons can't carry guns. Those in Misdemeanor Nation claim that the vote is different than gun ownership. We in Felony Nation agree. The vote is more dangerous than a gun. A vote in a United States election is a share of the most powerful military and economy in the history of the world. Should such power be entrusted to people who can't even be entrusted to control themselves?

Voting is the basic right of a citizen. But obedience to the law is the basic duty. Those who grossly breach the duty have no claim to the right.

In Misdemeanor Nation, voting helps restore and rehabilitate criminals. No evidence or logic is presented to support this belief, but somehow it must be true. In Felony Nation, voting is a tool for public deliberation and governmental accountability -- not a group therapy session.

It's fair to point out that Felony Nation may have gone too far in declaring certain crimes to be felonies. The argument for the enfranchisement of felons often seems to be a proxy fight against mandatory felony sentencing for low-level drug users. It's political poison to suggest that possession of a smidgen of cocaine ought not to be a felony; the enfranchisement of felons is much more palatable. If we're creating too many felons through the drug laws, let's re-examine the drug laws, instead of demeaning the importance of felonies themselves.

It's fair, too, to argue that some felons may be able to earn back their right to vote through penitence and public service. Who can dispute that Chuck Colson has given more to society than he ever took? But the road back to enfranchisement should be an arduous one, open only to the truly motivated. To allow felons to earn the vote is to reinforce the bond between voting and virtue; to give the vote to felons is to deny that bond altogether.

It's freedom math. Voting = virtue. Voting - virtue = zero freedom. Ergo: lack of virtue = lack of vote. This is the logic of Felony Nation. Would you care to join me there?

The author is a lawyer and a TCS contributing writer.



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