Gideon Yaffe is a professor at Yale Law School.
This week, Virginia Gov. Terry McAuliffe (D) vowed to sign individual orders restoring the voting rights of more than 200,000 convicted felons living in the state. His pledge followed the Virginia Supreme Court’s ruling that the mass clemency McAuliffe issued in April overstepped his power under the commonwealth’s constitution. Republicans complained bitterly — think of all those Democratic votes from the many African Americans who stand to benefit! — and promised to scrutinize every order for errors.
But the GOP has it wrong. Not only is McAuliffe doing the right thing, but also he should push further. Prisoners, too, should be allowed to vote, no matter their crimes. While only Vermont and Maine grant prisoners the vote, felon disenfranchisement fundamentally undermines the democratic rationale of our criminal laws. We cannot hold citizens to account for violating our laws while denying them a say over those laws.
In a democracy, it can fairly be said that when the state does something unpleasant to you — locks you up, forces you to pay taxes, takes your property — that injury is self-inflicted. Because it’s your government, whatever it does to you is something you do to yourself. And it’s your government because you have a say over what it does: You have the vote. But when the state brings down the hammer on a disenfranchised, recidivist felon, the punishment he receives is not self-inflicted. His punishment might as well be levied by a foreign government.
Most felons — whether in prison, on probation or parole, or entirely free of state supervision — are citizens. They should not be treated like foreigners. First of all, they have no other geographic home: They cannot be deported, because citizens have a right to be here. But felons also have no other political home. Nowhere else can they live under a government whose actions are their actions. In this way, they are importantly different from immigrants, who (if they come from a place governed by the rule of law) are granted a say over the behavior of some government somewhere.
True, this can all seem very abstract, even symbolic. After all, how much power does one voting citizen have over government behavior? But even if voting is only a symbol, it is a symbol with great power. An increasing body of research by social psychologist Tom Tyler and others demonstrates that those who feel a sense of ownership in their government are less likely to commit crimes. Enfranchisement is a potential source of crime control. Granting the vote to felons can discourage recidivism.
McAuliffe’s critics have made much of the fact that some of those he wants to enfranchise have committed violent crimes. But why should it be more appropriate to deny the vote to a violent criminal than a nonviolent one? Yes, violent felons are more likely than the rest of us to commit violent crimes in future. But because those crimes are unlikely to take place in the voting booth, denying violent felons the vote does not make anyone safer.
Nor is there good reason to think felons are less equipped to vote than anyone else. They were competent to stand trial, after all, and adult citizens in good standing must meet a far higher standard of incompetence to be denied the vote. In most states, anyone sufficiently in touch with reality to know what he or she is doing cannot be prevented from voting. Indeed, who is better positioned to support humane and fair criminal-justice policies than felons who have experienced firsthand what we do to the guilty?
Many liberals supported McAuliffe’s actions for the wrong reasons. “The Daily Show” host Trevor Noah, for instance, repeatedly noted that McAuliffe wants to restore the vote to people who have “served their time.” But even those still serving time are held to account for any crimes they commit in prison. Denying them the vote destroys the fundamental justification for standing by while the state punishes them — namely, that they brought it on themselves.
In a democracy, felon enfranchisement should not be a partisan issue. Both Republicans and Democrats ought to be held to account for their crimes by a government whose actions they can own. We should give the vote to citizens, in or out of prison, whom we wish to hold responsible for violating laws that are not just ours but also theirs.
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