The rest of the judiciary won't give this their blessing, I bet. It's like in McClesky v Kemp when the Supreme Court was confronted with the Baldus studies on the death penalty, which provided extremely compelling evidence of racial disparities affecting the application of the death penalty, they balked.
McClesky was the most serious, viable challenge to the constitutionality of the death penalty since Furman. The majority wouldn't admit that racism was sabotaging the process of justice - the closest they got to it was acknowledging that if they recognized the validity of the Baldus studies, there would be far-reaching implications for every other aspect of the criminal justice system as well. There would be chaos at every level, and the authority of every previous Supreme Court ruling about race would be challenged.
As it should have been. Here's congressional testimony from Julius Chambers about the legacy of racism that permeates the death penalty in America. He was arguing for the Racial Justice Act in 1988, which was intended to compensate for the McClesky ruling by giving the accused the chance to present statistical evidence that their trial or sentence was adversely affected by racism. The US Congress has yet to pass it, of course. Only two states in the country have done so (North Carolina and Kentucky).
Which is why I think this will probably be the furthest we get on this one, unless there's been enough time already for some of the circuit and appeals court judges to be replaced. This is the kind of precedent that all the resources of Power usually go into preventing.
Thurgood Marshall's most compelling argument against the death penalty was made in Furman in 1972, when it was briefly suspended as being cruel and unusual due to arbitrariness in the system. He joined Justices Blackmun and Brennan in their dissenting opinions in McClesky years later that articulated their concerns about the effect of racism on the execution of justice - and the justice of executions - in America. Conclusions from the Baldus studies were supported by the Government Accounting Office in 1990. Nevertheless, for too long their voices have remained in the minority.
Anyway, the practice of stripping convicted felons of the right to vote - and making it very onerous to get back - emerged out of the Jim Crow South. We were looking for every possible way we could think of to keep the poor and minorities from having any political power whatsoever. Since poor blacks were such easy targets for criminalization in the wake of Reconstruction (so their labor could be exploited once again), denying criminals the right to vote - which has absolutely no relationship to most "crime" - was the logical thing to do. It's overtly racist, and it's high time we moved past that now.
Think Arizona will be a leader?
Judge: Racial discrimination claims have merit
Tuesday, January 5, 2010
By LEVI PULKKINEN
In a move that could see Washington inmates voting from prison, a federal appeals court has thrown out the state's restrictions on felon voting.
Under state law, residents convicted of a felony currently lose the right to vote until they are released from custody and off of Department of Corrections supervision. Tuesday's split ruling by a 9th U.S. Circuit Court of Appeals panel puts those restrictions in doubt, as two of three judges reviewing the voting rights lawsuit found that the state restrictions unfairly penalize minorities.
Attorneys for six Washington state prisoners, Circuit Court Judge A. Wallace Tashima wrote, "have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways."
Joined by Judge Stephen Reinhardt in the majority opinion, Tashima found that black and Latino Washingtonians faced arrest and prosecution at rates far higher than could be explained simply by increased criminal activity. Finding no "race neutral" explanation for the higher incarceration rates, the majority reversed a U.S. District Court decision and ruled in favor of the inmates.
"Although (the state) criticized the experts' studies and the conclusions, the (plaintiffs') reports, when objectively viewed, support a finding of racial discrimination in Washington's criminal justice system," Tashima said in the ruling.
"Given that uncontroverted showing," he added, "in the words of the district court, there can be 'no doubt that members of racial minorities have experienced discrimination in Washington's criminal justice system.'"
Speaking on the ruling, Washington Secretary of State Sam Reed said the court's decision came as a surprise, in part because three circuit court panels elsewhere in the country came to opposite conclusions while reviewing similar cases.
Reed said he believes the state prohibition against prisoner voting remains appropriate.
"That's part of the penalty," Reed said. "A person loses their rights when they violate the rights of others by perpetrating a felony. … As long as when they get out they get a chance to rejoin society, that's the important part."
Reed said he supported a recent change in state law aimed at enabling felons returning to society to regain the vote. Under the new rules, felons no longer have to pay off their court-mandated fines before registering to vote.
Filed 14 years ago, the suit named Reed's office as a defendant as well as the Attorney General's Office and the governor's office. Reed said he expects to appeal the decision either to the U.S. Supreme Court or an 11-judge panel of the 9th Circuit.