Voting Rights for Felons: “Race Neutral” = Race Biased
posted at 9:08 pm on January 6, 2010 by Dafydd ab Hugh
In an astonishment of paralogia and “dumbth,” a three-judge panel of (what else?) the Ninth Circus Court of Appeals has just ruled, 2-1, that felons should be allowed to vote, even while still in prison.
To add collectivist offense to insult (they went long past mere injury), their reasoning was so racially byzantine that it sounds like a parody: A greater percent of blacks and Hispanics are incarcerated than whites; therefore, depriving these felon convicts the right to vote from their prison cells violates the 1965 Voting Rights Act!
“I can hear the cuckoo singing in the cuckooberry tree…”
Say — wouldn’t the mere fact that blacks and Hispanics are jailed at greater percentages than whites all by itself violate the 1964 Civil Rights Act ban on segregation? Let’s mandate that all races be incarcerated at exactly the same percentage as their representation in society: We let all the excess blacks and Hispanics go free, and send an appropriate number of whites and Asians to prison to balance it out, even if they haven’t been convicted of any crime. Sounds like a natural extension of the court’s reasoning to me.
(This is a non-trivial analogy: The reasoning of this panel is that the punishment violates the Voting Rights Act because, due to black and Hispanic overreprepresentation in prison, those federally defined races suffer a “disparate impact.” But by the same logic, if blacks and Hispanics are incarcerated at a greater rate than their numbers in the population, that too is a “disparate impact” that dictates where people are allowed — or in this case, required — to live on the basis of race. I’m certain the next step is to do just what I sarcastically suggest in the paragraph immediately above.)
The majority decision was written by Judge Atsushi Wallace Tashima, who was first nominated to the bench by Jimmy Carter in 1980, then elevated to the Ninth Circus by Bill Clinton in 1995 (confirmed in 1996); the dissenter — she wanted it remanded back to the courts to consider whether this calamity of non-voting felons was mitigated by a recent Washington state law making it easier for felons to recover their right to vote after finishing their sentences — the dissenter, Margaret McKeown, was nominated by Bill Clinton in 1997. (I cannot find the name of the concurring judge.)
Here’s the court’s reasoning, from SFGate, based in San Francisco:
In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said the Washington law violates the federal Voting Rights Act because evidence showed discrimination against minorities at every level of the state’s legal system: arrest, bail, prosecution and sentencing.
If the ruling survives, it will be binding in the circuit’s other eight states, including California, which denies voting rights to 283,000 convicted felons in prison or on parole, according to a report from the nonprofit Sentencing Project.
About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.
Among those in Washington state who commit crimes, “minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted,” Judge A. Wallace Tashima said in the appeals court’s majority opinion.
For example, he said, studies showed that African Americans in Washington were more than nine times as likely to be in prison as whites and 70 percent more likely to be searched, even though a study of one police department found that officers were more likely to find contraband when searching whites.
Findings were similar for Latinos and Native Americans, none of which could be explained by differences in crime rates, Tashima said.
It’s an odd kind of racism, however, that discriminates against blacks and Hispanics but in favor of Asians, who are so underrepresented in prison that they’re routinely excluded from all statistical analyses of the prison population by race. This despite the fact that racial discrimination against Asians has a long history in the United States going all the way back to the mid-19th century. (American Indian is a separate category in our “race-neutral” federal taxonomy of race.)
It will probably be struck down anyway by the Supreme Court, if not by an en banc hearing of the Ninth:
A state appeals court in San Francisco upheld California’s voting law last year. Three other federal appeals courts have ruled that the Voting Rights Act does not apply to bans on voting by felons.
“Part of being a good citizen is obeying the laws and not doing things to other citizens that are so egregious that you end up in prison,” said Washington Secretary of State Sam Reed, who promised an appeal of the ruling. “If you do, you are going to be denied your right to participate as a full citizen in our society.”
Nevertheless, let’s pick through the detritis of legalisms the court appears to have relied on in this wretched decision, propositions so risible that only a lawyer could argue them. It won’t take long (compared to reading Tolstoy):
Blacks are “disenfranchised” at a rate not proportionate to their numbers within the jurisdiction of the Ninth Circuit Court of Appeals; this clearly proves the entire justice system is racially discriminatory.
The assumption here is that all races, cultures, sexes, ethnicities, and nationalities should logically commit crimes at the same rate; thus, we would expect black teenagers living in Compton or Watts (or whatever the equivalent ghetto is in Washington) are no more likely to commit a felony than a Japanese-American soccer mom living in Beverly Hills. Ergo, if we find that more inner-city black youts per capita are imprisoned than Asian mothers of middle-school kids, we’ve proven illegal discrimination.
Anyone who accepts such a line of hooey is a dolt, robes or no robe.
Clearly, different races have different propensities towards crime. I do not believe this is due to genetics; rather, the cultures they have grown up in and voluntarily internalized “enable” wicked, evil, criminal behavior more than do other cultures. (And yes, before you ask, I have indeed read the Bell Curve and find many of their arguments unpersuasive.)
For example, the statistical tables for the 2006 National Crime Victimization Survey, conducted annually by the Justice Department’s Bureau of Justice Statistics, finds (Table 40) that blacks account for 31.7% of all completed violent crimes (single offender), including 42.2% of all completed robberies and 50.8% of all completed robberies with injuries.
Yet a quick glance through at the U.S. Census numbers for 2006 shows that blacks make up only 13% of the population (which is likely an overcount, since it’s based on self-report). Even accepting this probably exaggerated figure, that indicates blacks commit violent crimes at a rate two and a half times more than their percent of the population; they commit robberies at three times their numbers; and they commit robberies with injuries to the victim at a rate four times their numbers.
Every criminologist will tell you the same thing: Blacks and Hispanics commit more violent crimes per capita than do whites; though ideologically reassuring for some, the axiom of “cultural equivalence” falls apart in the real world. Thus merely citing “disproportionality” proves nothing about causality.
(For that matter, 93% of those imprisoned in 2008 were male; isn’t anyone going to investigate the “obvious” sex discrimination against men?)
Minorities are more likely than whites to be searched, arrested, detained and ultimately prosecuted.
Searched: If the victim describes his attacker as black, Hispanic, or Asian, shouldn’t the police focus their searches on people who at least meet the description? Or should they stop and search white senior citizens, even when the victim says he was robbed by a young black male, just to even things out? This is lunacy.
Arrested, detained, prosecuted: Police arrest or detain suspects when their investigations find evidence supporting an arrest or detention. If the court wants to rule that racism pervades “the system,” shouldn’t they at least point to evidence that, say, blacks found with crack cocaine are routinely arrested, while whites found with crack cocaine are routinely set free?
If there was any evidence of such, I strongly suspect it would have been reported by somebody; yet I read nine separate articles and found no reference to any such evidence.
Minorities are more likely to be convicted than whites who commit crimes, and more likely to be incarcerated if convicted.
The SFGate article didn’t mention anything about conviction rates or sentencing, but that must (by definition) explain the “missing” percent to account for the higher rate of incarceration of racial minorities than whites. There are a number of non-racially discriminatory reasons why certain minorities could be convicted at a rate higher than whites (and much higher than Asians):
- Type of crime — Some felonies, such as robbery, are more easily prosecuted than others, such as confidence games, burglary of unoccupied buildings, or insider stock trading, due to the differential impact on a jury of eyewitness testimony v. forensic testimony. Blacks and Hispanics commit violent crimes at a rate higher than whites, but whites probably commit nonviolent crimes at a higher rate than do blacks. Put the two together, and you have part of the incarceration answer.
Poverty of defendant — It seems self evident that people with money stand a better chance of being acquitted, or if convicted, a better chance of avoiding prison time, than poor people; quality of representation plays a huge role at trial (duh). It might be unpleasant to realize that the rich get off in situations where the poor, with their court-appointed attorneys, get jugged… but it is not due to race, as the O.J. Simpson trial proved.
A lower percent of blacks and Hispanics than whites and Asians are able to afford a high-powered attorney. But if that is now “evidence” of racial discrimination in the courtroom, then we may as well say that the undeniable fact that a greater percent of whites than blacks can afford big houses “proves” racial discrimination in the real-estate market. What next — must we have racial quotas for mansion ownership? Let’s just ban all private housing and make everyone live in identical, government-owned shoeboxes.
- Attitude at trial — Do we know for sure that black and Hispanic defendants are no more likely than whites and Asians to have a truculent, belligerent demeanor, leading juries to be more likely to convict them? I sure don’t, and it doesn’t seem facially obvious to me that childhood and adult-selected culture would have no effect on how a defendant acts during his trial. Again, combine the two, and you have defendents of certain races sabotaging their trials by their own aberrant behavior.
- Defendant’s plea — The BJS reports that of those defendants sentenced for a criminal offense in 2006, 94% pled guilty. But how does that break down by those sent to prison and those given probation or just a fine? Is a defendant more likely to go to prison if he pleads guilty, or if he pleads not guilty and vigorously contests conviction? If the former, as I believe if it, and if blacks and Hispanics were more likely to plead guilty than whites and Asians, that too would trend towards explaining why some races are overrepresented in prison.
- Prior convictions — I haven’t seen any statistic on how many blacks and Hispanics have prior convictions versus how many whites and Asians; this can certainly affect whether the convict is sentenced to prison. Where is the study on this question?
There are five confounding factors just off the top of my head, ten minutes’ thought. No story I’ve read has raised a single one of these factors; evidently, they don’t fit what Andrew Breitbart calls the “story-board” of this issue — the comic-book tale that journalists really want to tell — and all facts will be tortured until they surrender to it. In this case, the story-board is summed up by some jerk at Newsweek:
But the issue of prisoners participating in our democracy buries the real news in the decision. The court threw out Washington’s law because its criminal-justice system is biased against minorities. The problem isn’t with disenfranchising prisoners, it’s with a state legal system that unfairly throws so many people of color in prison that their voting power is diluted.
This is followed by a slavish recitation of the statistical “proof” of discrimination, about which seldom is heard a discouraging word.
What it really boils down to is that the burden of proof should be on those claiming the entire justice system is riddled with racism… not on the rest of us to “prove” that racial discrimination (by whom?) didn’t play a role in some black mugger with mutiple priors being sent to the Concrete Mama in Walla Walla.
Let’s swing back to the Fox News story for a moment; this is the quotation that fired me up to write this post:
The two appellate judges ruled that disparities in the state’s justice system “cannot be explained in race-neutral ways.”
What do they mean by “race-neutral?” I think it’s pretty clear that they demand that all races commit crimes in lockstep with their percent of the population. When that doesn’t happen, they immediately see racism as the only possible explanation.
Today, their solution is to allow imprisoned felons, who have shown contempt for the law, to vote on who will create those laws; that is, to remove that punishment for crime. But tomorrow it may be, as I suggested, to simply force the prison system to precisely mirror the racial makeup of the country… no matter what disparate impact that would have in the real world on whites and Asians accused of crimes.
But there is a deeper, even more insidious racism in this case, and it oozes from every pore of the majority: By ruling that denying voting rights to convicted felons discriminates against minorities in general, two judges are equating felons of all races with the entire minority population. It’s as bad as saying an entrance exam for getting into university “discriminates against blacks.” Why, because blacks are known to be unusually stupid?
How stunningly offensive. Crikey, what a horrendous calumny that is on the honest, law-abiding, minority population of the entire western United States.
How does Los Angeles Mayor Antonio Villaraigosa feel to learn that anti-punishment radicals equate his voting rights with those of convicted felons, or argue that Villaraigosa is statistically “more likely” to be sent to prison than, say, San Francisco Mayor Gavin Newsom? I would be hopping mad.
This entire decision of the Ninth Circuit is based upon collectivist reasoning, seeing every person who happens to be black or Hispanic as nothing but a representative of his race, felons an all. The court gives no weight to the individual choices made by free individuals in a free society; it’s a vile, despicable worldview that has more in common with Jim Crow than with the Voting Rights Act.
The best defense against racism — the ultimate collectivism — is not more collectivism, but rather treating people as individuals. Alas, I suspect it will be a long, long time before the Ninth Circus dips a toe into such a radical pond as individualism.
Cross-posted on Big Lizards…
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