The Criminal Constituency

By Kevin D. Williamson

Tuesday, April 26, 2016

Terry McAuliffe was a Clinton henchman before he was governor of Virginia. He would be a Clinton henchman afterward, too, which means that he must be one during his governorship, to which end he has ordered — without legal authority — the automatic re-enfranchisement of felons stripped of their voting rights. Virginia is a swing state, Mrs. Clinton needs it, and Governor McAuliffe is therefore determined to deliver it to her.

It is difficult to say which is more woeful: McAuliffe’s cynical political calculation or the fact that it is entirely accurate.

McAuliffe is here following the example of Barack Obama, another chief executive who has attempted to use particularistic powers entrusted him in a categorical rather than discrete fashion, thereby transforming exercises in executive privilege into policy changes that would normally require changes in the law. In the case of our ever-more-imperial president, the issue was illegal immigration: The federal government is under no particular obligation to prosecute every instance of illegal immigration — prosecutorial discretion is an ordinary feature of the law — but President Obama’s general application of that discrete power amounted to a change in the law (an executive amnesty) and a usurpation of legislative authority. The matter is going to the Supreme Court; so far, the lower courts have looked upon the Obama administration’s policy adventuring with skepticism.

McAuliffe may believe that the Commonwealth of Virginia should change its law and automatically reinstate the civil rights (some of them, anyway) of felons who have completed their sentences and whatever probation or parole conditions were attached to them. He might even be right. But the Commonwealth of Virginia has not done that. Doing so would require a bill to be introduced in its state legislature, passed, and signed by the governor. No such thing has happened. The governor’s executive privileges including granting clemency in certain criminal cases and restoring the civil rights (some of them, anyway) of rehabilitated criminals on a case-by-case basis. The ability to restore a felon’s voting rights does not grant the governor the power to do so universally any more than his ability to pardon a convicted murderer empowers him to legalize murder.

Voting rights are not the only rights that felons lose, and some of their civil rights — prominently, those guaranteed under the Second Amendment — are forfeited for life with no particular controversy. But it isn’t only gun rights: Those who commit sex offenses, especially offenses against children, may find their privacy compromised and their ability to move about freely restricted indefinitely, or until such a time as their mode of transport is a pine box carried by six strong men.

We restrict the gun rights of violent criminals, including those who have (in the inescapable cliché) “paid their debt to society” because they have proved themselves to be dangerous, and therefore not to be trusted with instruments of violence. They should not be trusted with firearms, or with the ultimate instrument of violence: political power.

Men and women (it is mostly men) who commit serious crimes may or may not do violence against members of the polity; but all of them, including those who commit serious nonviolent crimes, do violence against the polity itself, as a whole. Felonies are wounds, often grievous ones, to the social order. Those who have no regard for the law itself are rightly excluded from having an ordinary role in making it. Some of them may in fact be genuinely rehabilitated, which is why governors and presidents are empowered to act, discretely rather than categorically, in those cases. It need not be easy: An aged Texas legislator in the 1990s surprised his constituents when he confessed forgoing the ritual of having his photograph taken at the voting booth on election day because he was a disenfranchised felon, the result of an episode of youthful violence long forgotten by his community. It hadn’t been a secret, but had simply slipped people’s minds over the years of his long career in office.

There was no particular dishonor in his position. Voting is by its nature a private affair, and those who lament the “stigma” of disenfranchisement are curiously quiet on such things as public sex-offender registries, which create an intense (and generally appropriate) stigma on offenders who have served their sentences to completion. Certain felons have their First Amendment rights restricted in various ways. The infamous hacker Kevin Mitnick was forbidden from using any form of communication other than a landline telephone; he was successful in having that decision overturned, but there is nothing outrageous about it in principle. We deny criminals the implements of their crimes, just as we deny them the ability to profit from them under restrictions such as the Son of Sam law.

All of which would be interesting fodder for an argument within the Virginia legislature about whether to re-enfranchise felons. None of it is especially relevant to this case: Governor McAuliffe does not have the legal power to do what he proposes to do, and he is acting in obvious bad faith.

A self-respecting legislature would impeach him. Pity that the law doesn’t permit disenfranchising him, too.