Guest Host: Rachel Martin

In March 2016, the state of Maryland, where this photo was taken, restored voting rights to ex-felons.

In March 2016, the state of Maryland, where this photo was taken, restored voting rights to ex-felons.

Last month the governor of Virginia restored voting rights to more than 200,000 ex-felons. This is a dramatic development in a state whose felony disenfranchisement laws had been among the most restrictive in the nation. But Virginia isn’t the only state rethinking if and when those convicted of a felony should be allowed to vote. The Maryland legislature recently passed a bill automatically restoring voting rights to those who completed their sentence. While last year in Kentucky, one governor eased the state’s lifetime voting ban before his successor quickly reinstated it. Our panel discusses the debate over restoring voting rights to ex-felons.

Guests

  • Hans Von Spakovsky Senior legal fellow, Heritage Foundation and manager of Civil Justice Reform Initiative
  • Marc Mauer Executive director, The Sentencing Project.
  • Perry Hopkins Ex-felon; field organizer, Maryland Communities United
  • Sari Horwitz Staff writer, Washington Post

Hear From An Ex-Felon

“I committed a criminal offense, I was sentenced in a criminal court, but nobody told me I would serve a lifelong civil sentence,” organizer and ex-felon Perry Hopkins said. What he means:

Transcript

  • 11:06:54

    MS. RACHEL MARTINThanks for joining us. I'm Rachel Martin with NPR's "Weekend Edition" sitting in for Diane Rehm. Nearly 6 million Americans are prohibited from voting because of their felony convictions. Laws governing when they can rejoin the electorate vary dramatically by state. In some places, they are banned for life, while in two states, Maine and Vermont, felons can vote from prison.

  • 11:07:16

    MS. RACHEL MARTINLast month, the governor of Virginia restored voting rights to more than 200,000 ex-felons. Republicans called it a partisan ploy and the move has reignited the debate over when, if at all, those with felony convictions should be allowed to vote. Joining me now to talk about this in studio is Marc Mauer of the Sentencing Project. We're also joined by Hans von Spakovsky of the Heritage Foundation, Sari Horwitz of The Washington Post and Perry Hopkins of Maryland Communities United. Thanks, all, for being with us.

  • 11:07:47

    MR. MARC MAUERGood to be here.

  • 11:07:47

    MS. SARI HORWITZGood morning.

  • 11:07:48

    MR. PERRY HOPKINSGreat to be here.

  • 11:07:49

    MARTINAnd we'd like to hear from you during this hour. We'll be taking your comments and questions. Call us at 800-433-8850. Send us your email at drshow@wamu.org or join us on Facebook or on Twitter. And Sari, I'm going to start with you. I just mentioned the recent actions by the governor in Virginia. We're still seeing the consequences play out of that move. But can you remind us what the governor actually did and what's happening in the state now?

  • 11:08:16

    HORWITZSure. As you said, Governor Terry McAuliffe announced he would allow more than 200,000 ex-offenders of Virginia to register to vote in the upcoming presidential election. And that is considered one of the biggest actions taken by a state to instantly restore voting rights. So what this means is this change applies to every felon who's completed his or her sentence and has been released from probation or parole. It particularly affects black residents in Virginia where it's estimated that one in four African-Americans has been permanently banned from voting.

  • 11:08:51

    HORWITZIt applies to all ex-felons, including those guilty of violent offenses, such as murder and rape, which as incensed the critics of this move. McAuliffe did an analysis that said that 80 percent of the felons that will be affected are nonviolent offenders. He said he's doing this because he wants to give voice to a group of people who have paid their debt to society and are trying to reintegrate into their communities.

  • 11:09:20

    HORWITZBy doing this, he eliminated the need for ex-offenders to apply to vote after they've completed their sentences. Virginia, up to this point, had been one of 11 states where some or all ex-offenders can't vote unless the state gave them an individual exemption. So what he did is give them this right and also restore other civil rights, such as being on a jury and being allowed to run for office.

  • 11:09:43

    MARTINOkay. So Marc Mauer, can you give us the lay of the land in terms of what different laws look like across the country?

  • 11:09:49

    MAUERSure. Well, as you noted, it's all across the board because states set their own policy so in two states, Maine and Vermont, everyone can vote, including people in prison. In 48 states, in the District, you can't vote while you're in prison on a felony conviction. In 34 of those states, you also can't vote if you're under probation or parole supervision and in 12 of those states, some or all people are banned, even after completing their sentence.

  • 11:10:16

    MAUERYou know, if we look at this in big picture, U.S. policies in this regard, similar to our criminal justice policies are quite extreme by international standards. Most of western Europe, industrialized nations, countries either don't impose any disenfranchisement or when they do, it's limited solely to people in prison.

  • 11:10:36

    MARTINAnd how many people are we really talking about? I threw out the number 6 million, nearly 6 million. Are those prisoners, people on probation or parole?

  • 11:10:43

    MAUERYeah. It's 5.8 million is the exact figure from our last report on this. Three-quarters of those people are not in prison. They're either living in the community under probation or parole supervision or they've completed their sentences. In those states, that's still disenfranchised. So three-quarters not in prison.

  • 11:11:02

    MARTINHans, how can the rules vary so dramatically from state to state on this

  • 11:11:08

    MR. HANS VON SPAKOVSKYWell, because the Constitution, the 14th Amendment, which is one of the reconstruction amendments after the Civil War, specifically gives states the right to bridge the ability to vote for treason or other crimes. And so it's entirely up to the states and what they want to do. Now, the only limit on that at the Supreme Court has imposed is that a provision that was passed with an intent to discriminate or that's been applied in a discriminatory manner. That, they can't do.

  • 11:11:36

    MR. HANS VON SPAKOVSKYBut not allowing criminals to vote is something that has been going on in the United States since colonial times. In fact before the Civil War, about 80 percent of the states had a provision that prevented individuals like that from voting, including Virginia. It goes all the way back to the 1830 Constitution in the state.

  • 11:11:56

    MARTINBut what happens when that person serves their time and is released out into the community? What are the roots of that choice?

  • 11:12:05

    VON SPAKOVSKYWell, look, here's what I would tell you about this. I don't have a problem with felons regaining their right to vote. But I actually think that the system that Virginia had was a good one. Virginia...

  • 11:12:15

    MARTINThe one it used to have in place.

  • 11:12:15

    VON SPAKOVSKYUsed to have. Look, Virginia, for example, had a waiting period. If you're convicted of a violent crime, you had to wait three years before you could apply. And they would then look at your record and I think what needs to happen is you look at these on a case by case basis. And the reason for it is twofold. First of all, the recidivism rate of felons is extremely high. The U.S. Justice Department's bureau of justice statistics says that about two-thirds of felons or of prisoners are rearrested within three years.

  • 11:12:47

    VON SPAKOVSKYThree-quarters, within five years. So having a waiting period is a way of seeing whether the person really has turned over a new leaf and has rejoined society. And this idea that they've paid their debt, taking away the right to vote and the other civil rights that you lose -- you don't just lose your right to vote. We put that in as punishment for having broken the rules that society has imposed. And I don't think it's a problem to have a waiting period in which a person can show that they now are willing to by the abide by the rules that they intentionally broke before.

  • 11:13:20

    MARTINPerry Hopkins, you were shaking your head there. What do you think about a waiting period?

  • 11:13:23

    HOPKINSWhat I think about a waiting period? Can we wait to pay taxes? That's what I think about it.

  • 11:13:29

    MARTINYou're saying when you're released, you start...

  • 11:13:31

    HOPKINSI personally have paid into a system that is oppressed me for years and had no voice. This country was founded on the premise of taxation with representation. I'm paying -- I'm more in a dictatorship, basically.

  • 11:13:48

    MARTINWell, Hans, what do you think about that idea, that when felons are released they've served their time, they go -- they're members of our community again. Their kids go to our schools and they are -- they're paying taxes.

  • 11:13:59

    VON SPAKOVSKYI know. But everyone says they've paid their debt. I'm sorry, but they haven't paid their debt to the victims of their crimes and they're never going to be able to do that.

  • 11:14:10

    MARTINIsn't that what the sentences is intended to do?

  • 11:14:12

    VON SPAKOVSKYYeah, but part of the punishment that we enact in the 50 states is that you also lose other civil rights. And, again, we're talking about voting, but don't -- but keep in mind, you also lose your right to sit on jury, to be a notary public, to run for office. In many states, you lose your right for certain kinds of public employment, like being a school teacher or being a policeman.

  • 11:14:35

    MARTINI mean, Virginia has restored some of these, but you're saying in other states, those rights go away forever.

  • 11:14:38

    VON SPAKOVSKYNo, no. But the governor didn't restore all of those rights. For example, he specifically exempted individuals from being able to, once again, exercise their Second Amendments rights. Now that, to me, doesn't quite make sense because the governor is saying he now trusts the judgment of these individuals to vote in a ballot -- in a voting booth and to sit in a jury box, but he doesn't trust them outside in the community to exercise their Second Amendment rights. And there's a bit of a hypocrisy and dichotomy between those two.

  • 11:15:14

    MARTINMarc.

  • 11:15:15

    MAUERYou know, I think there's a real distinction between restrictions that are placed for public safety purposes and those that are fundamental rights of citizenship. So if we don't permit somebody with a conviction for being a pedophile to work in a daycare center, that's a public safety restriction. If we don't permit someone who's used a gun in crime, that's a public safety restriction as well. When we talk about the right to vote, we're talking about some fundamental rights of citizenship.

  • 11:15:41

    MAUERAnd even when you're in a maximum security prison, you still retain most of those rights. You can get married or divorced. You can buy and sell property. You can write a letter to the editor of The Washington Post. You may get it published. So I think we're drawing some very strange lines when we confuse legitimate punishment for your crime with who you are as a citizen.

  • 11:16:01

    MARTINSari Horwitz.

  • 11:16:02

    HORWITZYou know, this system of revoking voting rights for ex-offenders is part of what Ohio State University law professor Michelle Alexander has called part of the new Jim Crow. She's written a book about this.

  • 11:16:15

    HOPKINSExactly.

  • 11:16:16

    HORWITZWhich is kind of considered a bible among sentence reform advocates, inmates, lawyers. She writes a lot about people coming out of prison who want to get back into society, who are going to be paying taxes, who are going to be working in society in all kinds of jobs and are facing what she calls a new Jim Crow.

  • 11:16:37

    MARTINStay with us. More to come. We are talking this hour about the rights of felons, ex-felons, in particular to vote, whether or not those rights should be restored. And Sari, you were pointing out that there is a history in these laws of racism, that that is tinged and that weighs heavily on a lot of people.

  • 11:17:01

    HORWITZWell, there is a history of discrimination in voting in many states, many in the South, which is where the 1965 voting rights bill came from. And it's very interesting because in 2013, the Supreme Court, in a split decision, essentially gutted a section of that law that would allow the justice department to preclear new laws in states that might be more restrictive. And this action by Terry McAuliffe is interesting because it's coming at a time in this presidential election year that many states across the country, we're seeing Republican legislatures and Republican governors sign laws that are actually considered more restrictive.

  • 11:17:47

    HORWITZInstead of bringing people to the franchise, they're more restrictive or many people would consider them more restrictive. I realize some people don't, but many people do.

  • 11:17:55

    MARTINWe'll talk about the political implications of all this. Stay with us. We are talking about felony rights and voting rights in particular for ex-felons. You are listening to "The Diane Rehm Show."

  • 11:20:02

    MARTINWelcome back. I'm Rachel Martin with NPR's "Weekend Edition" sitting in for Diane Rehm. We're talking about voting rights for ex-felons. And I'm joined in the studio by Sari Horwitz, she's a staff writer at The Washington Post, Hans Von Spakovsky is a senior legal fellow at the Heritage Foundation, Marc Mauer is the executive directors of The Sentencing Project. And we're also joined by Perry Hopkins. He is an ex-felon himself and a current field organizer for Maryland Communities United.

  • 11:20:28

    MARTINAnd I want to go to a caller now. I want to take a call from Christopher in Winchester, Va. Christopher, you're on the air.

  • 11:20:36

    CHRISTOPHERYes. Yes. This is purely the governor of Virginia, what he did was purely a payback for Hillary Clinton. Clinton worked very hard to reelect Governor McAuliffe because, after all, Clinton, she wanted to make sure the swing vote of Virginia is part of the Clinton -- under the, you know. And, after all, you know, McAuliffe was the chief of staff for Bill Clinton and also he was the DNC chair. So it was in the best interest for make sure that the governor of Virginia was elected under Hillary, because Hillary knew three years ago that she wanted to run and he wants to. And they also tried the very same thing. They worked very hard to have the Maryland governorship under DNC, Democratic. But unfortunately they lost it.

  • 11:21:25

    MARTINChristopher, thank you so much for your call. And he's touching on the political implications all this -- of all this, which is very real. There are a lot of people saying that this was a partisan move by the governor. Is there any weight to that? I mean, this is a man with deep ties to the Clintons and this is a presidential year.

  • 11:21:45

    HORWITZYes. This executive order of McAuliffe immediately draw -- drew criticism from people who saw this as a blatant favor to Hillary Clinton. He has -- he and his wife -- McAuliffe and his wife recently raised $2 million for Hillary Clinton. Very close to the Clinton family. He was the former chair of the Democratic National Committee and chairman of Clinton's 2008 campaign for president. When asked about this, what Terry McAuliffe said was -- and I have his quote here -- Honestly, I haven't thought about it. How many are going to vote? We have no idea. I mean, literally no idea. I did this because it was the right thing to do.

  • 11:22:19

    MARTINMarc Mauer, why is -- why does this become a political issue?

  • 11:22:23

    MAUERWell, people project what they think the voting pattern's going to look like. They look at the fact that these people are disproportionately low income, disproportionately African American, make assumptions about what their voting practices will look like. It seems to me it's extremely inappropriate on either side of the issue, either to restore rights for partisan gain or to oppose them for partisan gain. We should be talking about the justice, the merits of the issue, regardless of how the votes play out. You know, if you think about 100 years ago, the campaign for women's suffrage, I don't recall there was a debate about whether they would vote Democratic or Republican. It was the right thing to do. A majority of Americans came to believe that.

  • 11:23:02

    MAUERSo we can speculate what the votes will look like. I think it's largely irrelevant to thinking about the principles involved here.

  • 11:23:09

    MARTINHans, do you think of this as a partisan issue?

  • 11:23:11

    VON SPAKOVSKYLook, this is the one thing Marc and I probably agree on. I don't think this should be looked at as a partisan issue. We should look at this from the standpoint of public policy and principle and what we think is the right thing to do. But we need to note that prior governors of the state of Virginia and prior attorney generals of both political parties agreed that the governor doesn't have the authority to do this.

  • 11:23:35

    VON SPAKOVSKYIn fact, Tim Kaine, you know, now the Democratic senator of the state, when he was governor, he was asked by the ACLU to do a blanket restoration of rights. His counsel wrote a letter to the ACLU saying, basically, that while Kaine would like to do that, the Constitution of the State of Virginia does not allow the governor to do it. He can do individual clemency, after reviewing a case. And that's the way the process works. But that they did not believe he had the legal right to do a blanket restoration.

  • 11:24:03

    VON SPAKOVSKYKen Cuccinelli, former Republican AG formed an advisory committee to look at this and included people like Paul Goldman, who is a former advisor and counsel to Doug Wilder, you know, the first African-American governor of the state. They also concluded the governor didn't have the power to do it. And yet the governor goes ahead and does it anyway. And why? Well, because Virginia now is a purple state. We've had two state-wide AG races just in the last ten years decided by less than a thousand votes. And I'm sure that he understands that this might make the difference in the race. And plus, it's part of a pattern that the governor has exhibited with other election-related bills.

  • 11:24:46

    MARTINI want to go to an email now from a listener named Lynn. She says, if ex-felons want to vote, let them take a vow, similar to a citizenship vow, promising certain key behaviors and lifestyles as a person now integrated back into society. Hans, is that the kind of thing you're talking about in this waiting period?

  • 11:25:05

    VON SPAKOVSKYYeah. I mean, look, if you put in, for example, a three-year or a five-year waiting period for a violent felon and they have to apply, well then you can see whether they've really rejoined the community, whether they're not willing to abide by the rules that previously they broke.

  • 11:25:20

    MARTINBut what kind of questions would you ask?

  • 11:25:22

    VON SPAKOVSKYYou look at whether they've, for example, have they gotten a job? Are they paying child support? Are they paying -- have they paid the restitution they were ordered to pay? There's all kinds of things like that, that you can look at to decide whether or not their rights should be restored to them. And, again, when you go into the voting booth, you are making decisions not only on what the laws should be by who you choose but who's going to enforce those laws. And for someone who made the conscious decision to break those laws and not abide by them, we should be careful in how and when we restore that right to vote to them.

  • 11:26:03

    MARTINPerry.

  • 11:26:03

    HOPKINSOh, boy. You know, in the state of Maryland, we've got a Republican governor. It -- this bill unanimously passed and he vetoed it. It was overridden because it was the right thing to do. It's not a public safety issue. It's an issue of Democracy. Listen to the gentleman talk about, you know, qualifying to be a citizen through a job. Well, we're one of the last marginal groups that are legally being discriminated against in the civil arena for the commission of a criminal offense. A felon -- it's real hard to get a job. Did he get a job? We can't get certain training, we can't get certain licenses, based on our past.

  • 11:26:51

    HOPKINSMeanwhile, once again we're funding the system that's doing this. When you're in prison, and I've been there, you come home with a new vision of being able to restart your life. No one tells you about all these civil barriers that are in your way. One of the greatest ways to decline recidivism is to give us a stake in our community as well as our country. We have no right to choose president. My kids can go to school with your kids. I can eat with you. I can ride on the bus with you. How about this, I can worship with you. But you don't respect my vote? You'll take my tax money. You want to take my tax money after being released.

  • 11:27:33

    HOPKINSThere's a mechanism in place through the criminal justice system that says the judge gives a fair and equal punishment. And after you have served that or even once you're actually put back into the community and made responsible for paying taxes and becoming part of a society...

  • 11:27:49

    MARTINMm-hmm.

  • 11:27:49

    HOPKINS...your rights should be returned.

  • 11:27:52

    MARTINHans, you talk about the concerns with recidivism.

  • 11:27:56

    VON SPAKOVSKYRight.

  • 11:27:56

    MARTINBut how does restoring voting rights affect that one way or the other?

  • 11:28:01

    VON SPAKOVSKYWell, in fact, if you're going to automatically restore it, then there's no incentive. Whereas, if you have a waiting period where you're going to have to show that you have reentered society and are willing to abide by the civil rules we have, then there's an incentive.

  • 11:28:18

    MARTINSo you're assuming the right to vote would be enough to convince someone to...

  • 11:28:21

    VON SPAKOVSKYNo.

  • 11:28:22

    MARTIN...not commit a crime?

  • 11:28:22

    VON SPAKOVSKYNo. But it's an incentive along with -- like I said, we keep going back to the right to vote -- but, again, I want to point out there are many other civil rights that you lose. And, in fact, in Virginia, as we said, the governor who says these people have paid their debt, they need to be reintegrated, he didn't restore all of those other rights, including employment rights.

  • 11:28:41

    VON SPAKOVSKYAnd, you know, Marc earlier said, well, you know, the right to work isn't as important as the right to vote. Excuse me, but we settled that issue during the Civil Rights Movement, when the ability to get employment was held to be a fundamental civil right, just like the Second Amendment is a fundamental constitutional right. And yet the governor didn't restore those rights in Virginia.

  • 11:29:03

    MARTINMarc Mauer.

  • 11:29:04

    MAUERNo, I said that the right to work, we have a different set of issues, public safety. And, you know, if one really cares about recidivism reduction, I think this policy, the way it was implemented in Virginia, works just the opposite. If we have people coming home from prison, trying to make it in the community, well tell them you've got to get a job, you have to have a good place to live, pay taxes, pay your family, and oh, by the way, you're still a second-class citizen...

  • 11:29:29

    HOPKINSMm-hmm.

  • 11:29:29

    MAUER...that is not a very good message. We want to draw a message of inclusion. We want to get people engaged in positive institutions. My next-door neighbor just came home from prison. If it's election day, I'd much rather he's standing next to me on line waiting to vote than hanging out on the street corner looking to get into trouble. It doesn't make a lot of sense.

  • 11:29:48

    MARTINPerry.

  • 11:29:49

    HOPKINSOne of the things that really needs to be brought to light is, we've talked about 1965, we've talked about -- we talked about a lot of outdated ideals. This thing needs to be brought up-to-date. A lot of the ideals that these are -- a lot of things that are founded on very strong foundations. But we really need to get honest and look at where we are today. It's time for an update. A lot of this is clear voter suppression. We talked about the Republican and the Democrat -- the political implication and projections. These things are being controlled. Meanwhile, at the same time, they're debilitating the quality of some people's lives.

  • 11:30:32

    MARTINI've got an email here speaking of the history. Sari, Michael writes an email, what was the rationale for removing voting rights from felons in the first place? Hans touched on this but walk us back. What was the rationale?

  • 11:30:45

    HORWITZWell, this was part of discriminatory laws from way back that -- and Hans did touch on it about that they did not have -- that they had not fully paid their debt to society and they were coming back and still had to sort of prove themselves before they could vote. And in fact governors in Kentucky -- well, right now, Virginia, up until this move, was part of four states that basically took away completely the right to vote. And governors in Kentucky and Florida and Iowa took similar steps that McAuliffe took to restore voting rights to certain ex-offenders. But this is the interesting thing, after they left office, those orders were rescinded.

  • 11:31:28

    HORWITZAnd so it's important to understand that what's happened in Virginia is not necessarily permanent. Because the way that Terry McAuliffe did this, he has to sign an identical executive order every month for the remaining two years of his term to cover felons who get out of prison each month. The next governor could come in and reverse that designation of future felons. And there's another election in 2017. The Republicans have hired a conservative, high-powered lawyer to take this on. So there may be a lawsuit. So it's unclear how long this is going to even last.

  • 11:32:00

    MARTINSay with us. I'm Rachel Martin with NPR's "Weekend Edition" and you're listening to "The Diane Rehm Show." If you'd like to join us, call 1-800-433-8850 or send an email to drshow@wamu.org, find us on Facebook or send us a tweet. I want to turn to you, Hans. We got a message from a listener who wrote into our website talking about the idea of shaming as an instrument of punishment.

  • 11:32:32

    MARTINAnd we had a back-and-forth on the website. Some people said these people have served their time. Why perpetuate this shame by rescinding their voting rights? And others said, what's wrong with shaming them? And why wouldn't it be preventative? Do you want to weigh-in on that? What -- is there power in shame and what do voting rights have to do with that?

  • 11:32:51

    VON SPAKOVSKYBoy, that's a tough question because it goes into our whole judicial system and how it works. But, yeah, I think shaming is part of it. But the key thing here to remember is that the sentence that you are given by a judge or a jury, when you've committed a felony, you know, no matter what it is -- whether it's drug dealing or murder or rape or arson -- society and various states have decided that's not the only punishment you're going to get. In addition to that, you often are required to pay restitution to your victims. And, often, as we now know, states say part of the punishment also will be the loss of all these other civil rights until you meet the standards that society and the culture is imposing for you to get them back.

  • 11:33:42

    VON SPAKOVSKYAnd look, if a state wants to make the decision through its legislature and its elected representatives to change that and to go to, for example, automatic restoration, you know, they have the right to do that. But I don't think that a governor acting on his own should be doing that in a way that goes against the stated policy and provisions of the state, particularly in the state constitution, which is what McAuliffe has done in Virginia.

  • 11:34:10

    MARTINSo you don't like the way Virginia did it. But...

  • 11:34:12

    VON SPAKOVSKYYeah. And I also don't think he has the authority to do it. You know, the way this ought to happen is in the state legislature with a good debate about all the issues that we're talking about here today. And just one final point, there's this general implication that this is intended to suppress votes and that it's discriminatory. Not allowing people who have committed crimes to vote goes back to ancient times. It goes back to Greece and Rome. This was in place in colonial times when black Americans couldn't vote. And any law like that today, which was passed with a discriminatory intent, can be knocked out in a court case.

  • 11:34:54

    VON SPAKOVSKYThe fact that Virginia's provision was not knocked out in a court case shows you that there was no history of it being passed with a discriminatory purpose or that it was applied discriminatory. You lose your right to vote not because of your race but because you intentionally and knowingly committed a crime.

  • 11:35:12

    MARTINMarc.

  • 11:35:13

    MAUERYeah, you know, when we talk about people having to demonstrate appropriate character and being ready to vote and all that, it seems like a strange concept to me. When I was 18 and registered to vote, no one asked me about my character, whether I was obeying the law. We don't say to people who owe traffic tickets, you can't vote. We don't say to somebody who's...

  • 11:35:30

    MARTINBut these are felons. It's different.

  • 11:35:31

    MAUERThese are felons but they're -- it's a character test. You know, adulterers can vote. People who are alcoholic can vote. You know, in a democracy, we take the bad with the good. And it's up to each of us to express our views, to get people supporting the ideas that we want to see. And once we start applying any kind of character test, especially in this case where people have completed their sentence ordered by the court, it seems to me it's a very slippery slope for a democracy.

  • 11:35:57

    MARTINSari.

  • 11:35:57

    HORWITZI just want to respond to Hans talking about what states can do. There has been a real movement in this country in recent years to restore the right to vote. In 38 states and the District, most felons automatically gain the right to vote when they complete their sentences. Maryland this year, automatically restored rights after release from prison. And, as Marc talked about, in Vermont and Maine, everyone has the right to vote, even if you're in prison.

  • 11:36:23

    MARTINI assume you're not okay with that though, Hans, in those two states.

  • 11:36:25

    VON SPAKOVSKYNo, no. No. My point is that each state should make its own decision on it. If I was in the state of Maine or Vermont, I would not be in favor of allowing people who are in prison to vote. And, in fact, what Sari hasn't said is that Massachusetts, in fact, used to be the third state that allowed people in prison to vote. Massachusetts is a very liberal state, you know, it's a blue state. And they put a referendum on the ballot and people overwhelmingly voted to take that right away from people in prison. Because they said that they didn't think folks who have shown that they are willing to break the law should be helping to make the law.

  • 11:37:07

    MARTINMarc.

  • 11:37:08

    MAUERYou know, there's been, again, looking internationally, there's been constitutional courts in Canada, South Africa, Israel, European Court of Human Rights, who have all upheld the right of people in prison to vote. And they blame it -- place it on dignity and rights of citizenship.

  • 11:37:22

    MARTINWe're going to talk much more about this -- the voting rights of ex-felons. Your calls and questions coming up. This is "The Diane Rehm Show." We'll be right back.

  • 11:40:01

    MARTINWelcome back, I'm Rachel Martin with NPR's Weekend Edition, sitting in for Diane Rehm. We're talking about the voting rights of ex-felons, and we're joined in the studio by Sari Horwitz, she's a staff writer with the Washington Post, Hans Von Spakovsky is a senior legal fellow at the Heritage Foundation, Marc Mauer is the executive director of The Sentencing Project, and Perry Hopkins is an ex-felon and current field organizer for Maryland Communities United.

  • 11:40:25

    MARTINAnd Perry, I want to turn to you. You fought to get this law in Virginia passed, including testifying in front of the Maryland legislature, I'm talking about Maryland. When did this issue become so important to you?

  • 11:40:39

    HOPKINSOh, a year -- about a year after it was -- the governor made it law that, you know, you could, as a felon, once you completed parole and probation. Actually it was when -- when President Obama became president. It was 10:08 at night, and I was sitting on the steps of a carryout, and believe it or not, in this low-end income neighborhood, everybody was running up and down the street. We have, we have a black president, we have a black president. And I began to cheer, too, until someone looked at me and said, you got a record, you couldn't vote. You can't claim this. You ain't got nothing to do with this.

  • 11:41:22

    HOPKINSYou know, when I grew up I wanted to be president. I'm going to be honest with you, I was, okay, really. And it hurt because here it is -- and I had a job, I was working. I couldn't even vote for president who runs our country. And it was really, really hurting. It really, really affected me not only, you know, my past and some of the decisions that I made but for where I was at that time and what I was trying to do with my life, how I was still being excluded as a result of my past, not my present.

  • 11:41:56

    MARTINDo you mind me asking what you were convicted of?

  • 11:41:57

    HOPKINSNon-violent drug felonies. As this gentleman stated, three-quarters of the people we're talking about are non-violent. It's not a public safety issue, especially when we look at the way the laws are construed today. Do you know that one bag of marijuana is a misdemeanor, but less weight in three different packages becomes a felony? So these are -- these are the guidelines by which people are given this label felon. And you live for the rest of your life.

  • 11:42:29

    HOPKINSI've been released from prison. When I am going to -- when do I get to stop serving time, when? It's a -- I committed a criminal offense, I was sentenced in a criminal court, but nobody told me I would serve a lifelong civil sentence. I can't get housing, I can only get miniscule jobs, but I can't get subsidized or rent subsidy. I'm discriminated against in the workplace. I can't get a student loan. I can barely get a job. So what is supposed to happen to this person like me, in this time where we're doing waiting periods and all of this? What stake do I have in my community or my country?

  • 11:43:14

    MARTINSari Horwitz?

  • 11:43:15

    HORWITZIt's so interesting to hear Perry's thoughts on this because all of this is happening at a time when there's bipartisan consensus for prison reform and sentencing reform. On Capitol Hill there are sentencing and prison reform bills with bipartisan support. You've got the ACLU and the Koch Brothers pushing to reduce these mandatory minimum sentences that came about in the last 20, 30 years during the nation's war on drugs.

  • 11:43:44

    HORWITZPresident Obama has granted clemency to 306 federal nonviolent drug offenders who had been given harsh sentences. So there's a whole -- this whole movement in our society, in Congress, with the presidency, when it comes to sentencing and re-entry into society after prison.

  • 11:44:00

    MARTINI want to turn to a caller. This is Anna from Charlottesville, Virginia. Anna, you're on the air.

  • 11:44:06

    ANNAHi, I wanted to challenge something that your guest, Mr. Von Spakovsky, said earlier about the governor being selective in the rights that he has restored. To the best of my understanding, the governor has restored that he has the authority to do so, and the Virginia Constitution gives the governor the sole authority to restore voting rights, but that is not the case for the Second Amendment rights that he has mentioned. To restore gun rights, a formally incarcerated individual has to petition the court to restore those rights and I believe first has to have their civil rights restored. So this executive order will move those individuals along on that path, but I don't think it's correct to say the governor is being selective or partisan in the rights that he's restoring. He's exerting his authority to restore the rights that he has the authority to do so.

  • 11:44:58

    MARTINThanks so much for the call, Anna. Hans, did you want to respond to that?

  • 11:45:01

    VON SPAKOVSKYAnyone can pull up the three-page executive order that the governor signed, and you can look at the last page, and he specifically says that he is not restoring the rights of felons to own or possess a gun. And if you look at the constitutional provision, it's Article V, Section 12, he has full, full rights to provide clemency, and that means for any -- any and all purposes under Virginia law on an individual basis. So I don't believe the caller is correct about that.

  • 11:45:36

    MARTINI'm going to go to Thomas from Morristown, Tennessee, who is on the line. Thomas, you're on the air.

  • 11:45:41

    THOMASWell thank you for taking my call. We have a record number, 2.2 million Americans, behind bars. We are -- have denied them a right to vote. I called the governor, McAuliffe, of Virginia this week when I heard the great news that he was restoring the voting rights of over 400,000 Americans who should have never, ever had them taken away, here of all places.

  • 11:46:12

    THOMASI believe it was Clarence Darrow who once said true patriotism hates injustice in its own land more than anywhere else, and I can't think of a more unjust way to treat any American citizen than to take away their only voice, the only right they have in a republic that claims freedom above else, and...

  • 11:46:37

    MARTINThank you so much for your call, Thomas. Hans, is there something to be said for the fact that people who are imprisoned are real patrons of the state, to some degree? They've got an even more vested interest in voting.

  • 11:46:52

    VON SPAKOVSKYNo, I don't agree with that, and I would in fact -- to answer that caller, I would actually cite a great headline from an article that appeared in the Washington Post that was written by Paul Goldman and another author. Paul Goldman, I said, former aide to Doug Wilde, in which he said rapists and other violent felons don't have a moral claim to automatic voting rights restoration.

  • 11:47:14

    MARTINWhat do you think about that, Marc? Is there a line? I mean, are -- do you personally see that some people, some crimes don't deserve to have their voting rights restored?

  • 11:47:23

    MAUERNo, I don't think it makes sense. You know, we take into account the severity of their crime on the day of sentencing. You know, generally speaking murderers are punished more harshly than people convicted of rape, who are punished more harshly than burglars, who are punished more harshly than shoplifters. So you get the amount of time in prison or under community supervision. That is very much taken into account.

  • 11:47:46

    MAUERWe're now talking about people who have served every single day that the state required them to serve. They're back in the community. They may recidivate in the future. I might commit a crime in the future. But as of today, I'm not committing crime, and these people who had their rights restored have not committed a new crime. So what is the purpose in just projecting and making guesses about what might happen in the future?

  • 11:48:11

    MARTINHans, you said that Virginia did it right before they changed. Can you point to another state today that you think is doing it right?

  • 11:48:18

    VON SPAKOVSKYWell Florida is another state where you apply, and the application -- this is not a difficult process, but you have to apply, the state board or the governor's office reviews your record to see if you've really turned over a new leaf since you've gotten out of prison, and if so then you're given clemency and a pardon, and your rights are restored. And I think that's a pretty good system.

  • 11:48:42

    VON SPAKOVSKYLike I said, I don't disagree that the people of a state can, if they want to, decide to just do an automatic restoration. But at the very least, I think one of the mistakes that McAuliffe made in Virginia is yeah, he said that he's only giving automatic restoration for people who have finished their sentences and have finished any probation or parole, but he said nothing about court-ordered restitution, I don't believe, in his order.

  • 11:49:10

    VON SPAKOVSKYSo victims will still be suffering when the people who victimized them are getting all of these other rights back.

  • 11:49:18

    MARTINThere's I think probably a lot of concern about that phrase that you used, though. How do you determine if someone has, quote, turned over a new leaf? And presumably this standard would vary from state to state.

  • 11:49:29

    VON SPAKOVSKYYeah, but the rules vary from state to state, and the Constitution of the United States, the 14th Amendment, specifically gives states the right to make this decision on their own. And as we've said, I mean, some states have decided, two of them, that they're not going to do it at all, they're going to allow people to vote from prison. But we are a -- we are a federal system, and states have the ability to make the decision on their own how they're going to treat this problem.

  • 11:49:55

    MARTINWe've got an email from Christopher, who writes, I think the underlying issue is that it's become so much easier to become a felon these days. A felon back when these laws were put in place was someone who more clearly could not be trusted with these rights. Perry?

  • 11:50:10

    HOPKINSYou know, once again, it's time to update the system. It's time to update our laws, update our policies because in one hand, on one hand, like the gentleman Mr. Hans is saying, okay, they should have to wait. What do they do when they wait? What do you do when you can't get a job? We understand this. Let's keep it really real right here, okay? It's a business. Those people represent money. You're worth $40,000 behind bars. What are you worth in someone's eyes on the street? I can guarantee, 40 grand a head, let's add them up.

  • 11:50:44

    HOPKINSSo we design a system that's designed to fail, okay. I just want to say this real quick, real quick, okay, about the right to vote, and we're talking about the civil and the criminal. In Baltimore City, over 20,000 of the 40,000 in Maryland are concentrated in Baltimore City where the same governor, O'Malley, that imposed the law, right, imposed a zero-tolerance law in the city, in a non-perfect society. Over 170,000 African-American men were arrested and never charged. It was a way of getting them into the system. It was a way, and it worked.

  • 11:51:23

    HOPKINSIn Baltimore City right now, those over 20,000 people who've been enfranchised, guess what? They're not just being seen as criminals anymore. You know what they're being seen as? Constituents. There was a -- there was a mayoral candidate forum held by -- hosted by Communities United just for ex-felons to address the candidates with their issues. And you know what their issues based -- are based on? The civil discrimination that is corroding the quality of their lives and the opportunities for them to become productive citizens and re-enter and reintegrate into a society that they, through their mistakes, have left but have now returned to.

  • 11:52:04

    HORWITZWell, and, you know, it'll be interesting to see, talking about Maryland, it'll be interesting to see how this plays out in Virginia. What's happening right now on the ground is there are groups sort of in a frenzied effort to find ex-offenders and get them registered. In the first two weeks since the announcement, 2,000 ex-offenders were registered. The impact on the election and the impact on issues in Virginia will depend on how many people get registered and then vote.

  • 11:52:33

    MARTINI'm Rachel Martin with NPR's Weekend Edition, and you're listening to the Diane Rehm Show. And I want to continue the conversation by turning to a caller. I'm going to bring in Corey of Charleston, West Virginia. Hey, Corey, you're on the air.

  • 11:52:50

    COREYHi, yes, I just had a quick comment for Hans about the right to vote being taken away from convicted felons. I just wanted to say I think that there are thousands and thousands of -- maybe even millions of people out there who are felons but have not been caught that are still able to vote, and there's always going to be these people voting, whether they're caught or not. So what is the true effect of not -- of not letting these people vote just because they've been caught of convicting a felony?

  • 11:53:29

    COREYThere are still people who would be caught in the future who are able to vote, and it's -- I just don't see it as really being effective at all. It's still American citizens voting for what they believe in, no matter what they've been caught of -- whether they've been caught or not. That is all I had.

  • 11:53:45

    MARTINCorey, thanks so much. Thanks so much for your call, Corey. Hans, what about that? I mean, he's getting to something that's a little murkier, people who just might not be good folks, who could be committing crimes and not getting caught.

  • 11:53:56

    VON SPAKOVSKYWell, you know, we don't have a perfect criminal justice system. I'm not sure how to answer that. But on the other...

  • 11:54:00

    MARTINBut in terms of recidivism, and you're talking about people who might just be prone to committing a crime again.

  • 11:54:06

    VON SPAKOVSKYI know, but that in fact is a problem. Look, I have great admiration for Perry. You've clearly re-entered society, you've been working hard on many different issues. But that doesn't change the fact that within five years, three-quarters of criminals are going to be rearrested and end up back in prison.

  • 11:54:26

    HOPKINSOh, they are?

  • 11:54:26

    MARTINBut then should their voting rights, a decision about that, be made when they commit a subsequent crime?

  • 11:54:31

    VON SPAKOVSKYWell, I think they ought to first prove to society that they are willing to abide, as I said, by the rules that we have set before we restore that right. And, you know, again, going back to all these other rights, do folks think that a rapist who just got out of prison should immediately be able to sit in a jury box and make decisions on other individuals who have been accused of rape in a case?

  • 11:54:57

    MARTINMarc, what do you think about that?

  • 11:54:57

    VON SPAKOVSKYSome may decide that they ought to be able to do that, but that's something that we should consider and not just talk about voting rights, talk about all these other rights, too, that you lose.

  • 11:55:05

    MAUERYeah, this issue of trust, it's not clear to me what -- how this comes up in the real world. You know, we have an election coming up for city council or state senate. It's not as if there's a pro-criminal candidate out there and an anti-criminal candidate out there. So I've spent a lot of time in prisons talking to a lot of people. When I talk to people about issues of the day, whether it's taxes, abortion, going to war, the range of opinions I hear in prison is not at all unlike what you hear on the outside, too.

  • 11:55:33

    MAUERSo just because someone has a felony conviction doesn't mean that they're totally divorced from the rest of the world and in most cases recognize they've made a mistake, recognize there's some punishment that comes along with that. It doesn't mean that they're any more likely to disrupt our electoral process than anybody walking down the street.

  • 11:55:55

    MARTINPerry, how did not having voting rights affect your idea of what it meant to be an American citizen?

  • 11:55:59

    HOPKINSI felt less than.

  • 11:56:01

    MARTINLess than?

  • 11:56:01

    HOPKINSMuch less than, second class, not second, probably third or fourth. I felt depressed. The returning of the voting rights, I'm going to tell you what, I felt vindicated. I felt that now I matter. Now I got a say-so. Now that I have -- now I got a say-so not only in my own life and what goes on in my community, but I'm a part of this country for real, okay. I can choose what mayor is going to be best for my schools. I can choose judges that are going to be fair in the levying of their punishment, and how about that. I attended -- hey, I attended judge forums.

  • 11:56:44

    HOPKINSYou know, one of the biggest things is this. I'm back, I'm home. I'm whole. I'm just like you.

  • 11:56:52

    MARTINPerry Hopkins is an ex-felon and current field organizer for Maryland Communities United. We were also joined in studio by Marc Mauer, he's the executive director of The Sentencing Project, a nonprofit that advocates for sentencing reform, Hans Von Spakovsky, I got it right, didn't I?

  • 11:57:09

    VON SPAKOVSKYYou got it right.

  • 11:57:10

    MARTINThird time's the charm. Senior legal fellow at the Heritage Foundation and Sari Horwitz, a staff writer at the Washington Post. I'm Rachel Martin with NPR's Weekend Edition, sitting in for Diane Rehm. Thank you so much for listening.

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