Re-enfranchisement After Debt to Society is Paid

On April 22, 2016 Virginia Governor Terry McAuliffe, a Democrat, took executive action to re-enfranchise thousands of ex-cons by returning to them the right to vote. But, in the patois of the streets, they have to be “off paper” first. In other words, ex-cons who have served out their sentence and are no longer under any form of adult supervision are free to do what nearly half of us do every four-year presidential cycle: nothing.

In 2016, it seems preposterous to suggest anything that falls short of war mongering, carpet bombing, free lunch, free college, spray tan, sweat glands, email etiquette, or hand-to-Johnson ratio can be rationally characterized as a stunt. Still, the move by McAuliffe has been roundly criticized by Republicans as politically motivated jiggery-pokery. Ostensibly, what sparked the ire of some Republicans is the fact that most of those incarcerated in this country are minorities. And, there is an historical expectation that most minorities will vote Democrat. So, they reasoned, it was a quasi-attempt to ‘stuff the ballot box’ in Virginia.

Ignoring the elephantine racism inherent in the syllogism, the Governor’s move got me thinking. First, I wondered whether Texas convicts enjoyed the right to vote upon satisfaction of the terms of a felony conviction. I’ll admit I was shocked to find the law in Texas is not among the most arcane and oppressive in the land. Here, once you’re “off paper,” you can vote. The second thing I wondered about were the general implications of re-enfranchising some 206,000 convicted felons.

Now, we’re all familiar with that old saw: do the crime, do the time. Believe it or not, I have absolutely no problem with that. I certainly don’t see myself as a crime enthusiast. Instead, I see myself in opposition to fear mongering and government overreach and in support of the Bill of Rights.

Crime should not go unchecked. But, not every crime should be punishable by death; metaphoric or otherwise. In that vein and on the opposite end of the spectrum, most of us are also familiar with the redemptive promise inherent in a man’s statement that he has “paid his debt to society.”

I’ve never been convicted of a felony in this or any other state. So, I don’t think I can speak with authority on the trials of a felon without having experienced his travails. But, I’ve got debts. I’ve got loads of those. I borrowed my way through college and then graduate school and then law school. And while I have always felt a kind of reticence to admit the bounty I had to borrow to finance my education, that reticence melts away each time I manage to pay something off. I’ve been able to pay off a few credit cards. I’ve even knocked out some of my smaller student loans. Granted, each of those final payments has represented nothing more than a drop in the proverbial bucket. Still, every drop of “final payment” has felt absolutely baptismal.

I get a sense of relief and of hope knowing one day the lie I tell myself about finally escaping debt will feel less cruel and unusual. More than that, though, is the feeling of pride I experience in those moments knowing I shouldered a debt—underwritten by My Ass National Bank—and am peeling the son of a bitch off of me one miserable bill at a time. I look to the future knowing one day I will have finally ticked my last chalk mark on the wall; a day outside the bank standing tall and with little more than the clothes on my back knowing a profound and simple truth: It’s over. It’s done. It’s finished.

Today, I can only imagine the relief and the joy I’ll feel on that day. But, the point is, I can imagine it.

I think a lot of people—even those whose decisions have resulted in final felony convictions—might look back on their life and see it through a similar lens. Of course, I realize the glaring disproportionality. But, I believe there is, at least, an elemental similarity. After all, in life we are but a compendium of our decisions; some good, some bad. And the damnable peculiarity of it is that both have the ability to make us better people. So, I may not be a felon. But, struggle is relatable. And, I share the soul of my struggle with everyone else who has struggled.

If struggle is one side of the coin, hope, I think, is the other. And I believe hope is relatable, too.

What hope does a felon have?

There is a website purporting to provide a compilation of the collateral consequences that befall a person convicted of a crime. It’s searchable by state. I streamlined my Texas search to include only those felony offenses with consequences described as “Permanent/Unspecified.” My search returned 503 individual “Permanent/Unspecified” sanctions. I didn’t read them all. It was too depressing. Suffice it to say, if a felon cannot even hope to obtain gainful employment at the local Bingo hall (16 TAC §402.402), his options are pretty limited.

Keep in mind these are not merely sanctions imposed while an inmate is serving out his sentence. These are the roadblocks that remain after a person has “paid their debt to society.” These are the limitations placed upon those we expect to become “contributing members of society.” In reality, the truth is this: a person convicted of a felony can never truly “pay his debt to society.” The juice runs on them in perpetuity.

Many may pause here thinking the limitations placed upon those convicted in the commission of felony offenses are perfectly reasonable consequences of bad decision-making. I get that. Hell, to a limited extent I even agree. Some offenders—like murderers and child predators—should never be fully re-integrated with society. But, the truth is prisons aren’t filled with murderers and child predators.

In Virginia they took a small step in the direction of re-enfranchising those convicted of felony offenses and I commend them for it. I don’t think it’s a good idea because I’m a bleeding-heart liberal defense lawyer, either. I’m not particularly liberal and any bleeding in my heart would only be a sign of a medical emergency. I think it’s a good idea because I believe it enhances the public safety.

In 2013, the average male life expectancy was 75.90 years; for women, 80.5 years. A 2006 study showed the average age of a felony offender was 33 years old. That’s about 42 years between conviction and death. Moreover, that’s about 42 years of life as a putative second class citizen. To be honest, I just don’t think that’s a good idea. Do the crime, do the time: I’m with you. After that, with certain exceptions, I believe they should be given an honest shot at redemption—at re-enfranchisement.

Why?

Simple.

Most successful people do not resort to street crime for one very simple reason: they have too much to lose. The artificial and often permanent limitations that relegate felons to second-class citizen status mean those people leave prison only to find they have no real hope of ever achieving success. That if they pay their taxes and avoid further transgressions they can wallow in the middling existence of those destined to live check-to-check and hand-to-mouth. Tell me: do you think those people really feel they have all that much to lose? And on average, they have about 42 years to think about that.

One day all my debts will be paid. Then, for me, it’ll be over. It’ll be done. It’ll be finished. But for ex-cons it’s never over. It’s never done. It’s never finished. Not really. I cannot imagine an existence more hopeless than that.

Recidivism isn’t always proof of criminality. Sometimes, it’s proof that disenfranchisement can lead to open revolt. I’m from Texas. So, I get it. We can put down a revolt. But maybe, just maybe, it might be worthwhile to consider the wisdom and ease of avoiding it.

I don’t want to reward crime.

I want to restore hope so that crime doesn’t seem like it’s the only option.

About Rick Oliver

Rick Oliver is a criminal trial and appellate lawyer. In 2016 Rick was certified by the Texas Board of Legal Specialization in Criminal Law. He applied for board certification less than 7 years after being licensed and having never worked under another attorney, or as an assistant district attorney, and without relying on a single court appointment in order to meet the application requirements. He is a 2007 graduate of South Texas College of Law and has been a solo practitioner since 2008. His articles have been published by The Voice and The Defender. He is a member of TCDLA, HCCLA, MCCDLA, NACDL, and DUIDLA. He lives in Humble with his wife and two children.

Twitter: @rickoliverlaw

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