Apr 24, 2016

Virginia Gov: Murderers' Voting Strengthens Democracy

Democracy: McAuliffe Raised $275,000,000 for the Clintons and now 206,000 Felon Voters for Hillary
Pr 17:15 He that justifies the wicked, and he that condemns the just, they both are an abomination to the LORD.
Pr 24:24 He that says to the wicked, You are righteous; him the people shall curse, nations shall abhor him.
Another U.S. political leader has furthered the corruption of the body politic with mass amnesty, relying on false arguments about law and justice to support the treatment of those guilty of crimes in the same manner as those who are not. Citizenship is demeaned where its powers are distributed without respect to the crimes of citizens so that the innocent and the guilty are treated alike. Justice is dimmed where the interests of felons are considered but not the interests of non-felon citizens. Democracy is undermined where discretionary amnesty constitutionally limited to individual consideration of cases is used to influence political outcomes.

Some background: Friday, Virginia's Governor Terry McAuliffe, the former DNC and Hillary Clinton campaign chairman, granted a general clemency, or amnesty as such general acts of un-individualized oblivion are usually called. It applies to all 206,000 Virginia violent and nonviolent felons, regardless of the character or severity of their crime, who have currently concluded the imprisonment or supervised probationary phases of their punishment. But amnesty is not otherwise confined, e.g., limited to those who have paid the restitution owed to criminal victims or fines required by their sentences. In other words, portions of the non-custodial criminal sentence may be outstanding and the amnesty still applies.

The amnesty was made without any particular consideration of individual cases.  The amnesty is directed and limited to the termination of certain aspects of the felons continuing punishment after incarceration or supervised probation, e.g., it doesn't end the penal obligation to pay restitution or fines. McAuliffe has framed the amnesty publicly as focused on voting rights, which under all previous practice of Virginia law could only be restored after individual petition to the governor and after consideration of the particular case.

The Order specifies, more broadly than McAuliffe's public focus, that it applies to certain remaining punitive consequences of the felons' convictions, including restrictions on "(1) the right to vote; (2) the right to hold public office; (3) the right to serve on a jury; and (4) the right to act as a notary public." Other consequences remain unaffected, including as the Order emphatically specifies, the prohibition of a felon's "right to ship, transport, possess, or receive firearms."

Given the approaching election involving his patrons, the Clintons, from whose political influence he has admitted to benefiting in his personal lucrative businesses, critics are charging that the amnesty aims to influence the outcome of the presidential election and gain him a Cabinet seat. The unprecedented general amnesty will increase voters rolls by approximately 4%. The felon vote is expected on all sides to benefit Clinton.

The legality of the amnesty is in some doubt. McAuliffe expressly purported to act under Article V, Section 12 of the Virginia Constitution, which provides in relevant part:
Executive clemency 
The Governor shall have power ... to grant reprieves and pardons after conviction...; to remove political disabilities consequent upon conviction for offenses committed prior or subsequent to the adoption of this Constitution; and to commute capital punishment.
He shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.
Because of the second clause requiring an accounting for the "particulars of every case ... with [the Governor's] reasons," the legitimacy of his general clemency has already been called into question by Virginia's Republican legislators and should be the subject of litigation. McAuliffe has admitted that he did not act according to an individualized review of each case and has ordered the general clemency to be renewed monthly to all without such further particular review. If the outcome of the swing-state of Virginia is a decisive in the presidential election, the Governor's unprecedented action could threaten the public legitimacy of Clinton's presidency. The Governor's unprecedented action is, therefore, both legally and prudentially questionable.

What interests me, however, is the poor reasoning that McAuliffe offers to justify the amnesty in his executive order. It is a sign of the sad state of American democracy that he knows this kind of deceptive rhetoric will move people.

Obscurantist Constitutional Arguments

First, in the preamble to the order, McAuliffe claims that he has the power to issue a general clemency without individual review because "the power granted to the Governor under Article V, Section 12 to remove political disabilities is absolute and without any limitation not expressly stated within the Constitution of Virginia." His assertion of "absolute" power here -- though consistent with the charges of corruption that surround him -- is manifestly wrong. Anyone familiar with the idea of the rule of law knows his power is not absolute, and this is true even if the universal limits of the rule of law on all office holders in a state constituted by law are not expressly stated in the Constitution. For example, the Virginia Constitution does not state that he can't take a bribe in return for granting an amnesty. Does McAuliffe really claim the absolute power to grant clemency for cash? The Virginia Constitution does not state any basic rationality requirement, but does McAuliffe think he could grant a general amnesty only to those who were registered Democrats, only to people who had previously volunteered for Hillary's reelection campaign, only to people who voted for McAuliffe?

In addition to being categorically incorrect, the argument is obscurantist, making no valid argument about the central issue. The whole legal issue will be whether the expressly stated limit in the second clause of Section 12, that requires him to account for "particulars of every case ... with his reasons," provides a relevant limit on his authority to ignore particulars in making a general amnesty. Since this limit is "expressly stated," McAuliffe's claim of "absolute power" except for "limitations expressly stated" doesn't address the only issue at all. The only issue is whether the one expressly stated limitation in fact applies in this case. Clearly, the Constitution grants him the power to make an individualized determination but that is not what he did. He didn't even limit his order to individualizes determinations that could be checked clerically, like making sure all fines and restitution to the felons victims had been paid. This would have slowed the process down too much to affect the federal election.

Attack on the Virginia Constitution's Judgment of Just Criminal Punishment

Second, McAuliffe argues: "all individuals who have served the terms of their incarceration and any periods of supervised release deserve to re-enter society on fair and just terms, including to participate in the political and economic advancement of Virginia." But this is simply contrary to established judgment of Virginia's fundamental organic law.

Article II, Section 1 of the Virginia Constitution itself makes loss of the franchise a continuing consequence of conviction for a felony. Is this not "fair and just"? Is McAuliffe saying the Constitution that grants him his own executive authority is unjust? That seems to be what he is saying. Why doesn't he just come out and say that he is subverting the Virginia Constitution because in his judgment, it is unjust.

This is a binary choice: (a) either McAuliffe is right that murderers and con-men only can "deserve" to be punished with a sentence of imprisonment (and, once this is completed, any other kind of consequence pertaining to voting rights is not "fair and just"), or (b) the Constitution is fair and just in imposing precisely this continuing consequence. They can't both be true.

The Constitution aside, what ethical principle requires that the only kind of punishment for a felony be imprisonment and not other consequences? Is it unjust to require felons to pay restitution to victims or fines after they have completed their prison sentence? Must seized property be returned, too, because that is a continuing consequence after incarceration? Is this why McAuliffe doesn't condition his general amnesty on payment of fines or restitution owed? How can it be just to do the greater and deny a person of their right of physical liberty for decades if it cannot be just to do the lesser and deny a felon participation in elections? Why has such a principle never been declared previously ever in the history of mankind until Hillary Clinton was up for election?

Conflicting Positions on Restoration of Civil Rights: Voting but not Self-Defense, Considering the Civil Rights of Criminals But Not the Civil Rights of Victims

Third, McAuliffe concludes "the restoration of civil rights has been noted to achieve substantial benefits for those individuals who have felt long-exiled from mainstream life; [and] democracy is strengthened by having more citizens involved in the political process." If the restoration of civil rights is so important, why not restore the constitutional right to defend oneself with firearms? The right of self-defense is pre-political, more basic than the right to vote, hold public office, serve on a jury or serve as a public notary. If this is about restoring civil rights for the "long-exiled" murderers, why not allow them to defend themselves effectively as is their recognized constitutional civil right? Why should non-violent felons, for example, be denied their rights to effective self-defense? If it's unfair to deny a murderer the right to sit on a jury, why not to allow a non-violent felon the right to own a gun?

There are many other more serious consequences for felons in Virginia, including the right of a spouse to divorce a felon and a felon's subjection to loss of parental rights. Does McAuliffe really think that losing the right to vote is more important than the loss of family? Why hasn't he made this a priority if this is such a fundamental matter of justice to him?

Additionally, while McAuliffe's concern for the feelings of felons is admirable, how about considering the interests of those who haven't committed felonies, too? Does a woman whose husband was murdered have any interest in not encountering her husband's murderer in the places where she has a right and duty to fulfill her public obligations? Should we force her to stand next to her husband's murderer in the polling place or to sit with him in the jury box? Is it appropriate that a victim of a felony might be ruled by a public official who committed the felony? Does the widow conned out of her savings have any interest in not seeing her defrauder elected to positions of public trust? Why does McAuliffe not discuss the victims of crimes as he celebrates the benefits to felons?

Ridiculous Vision of Democracy

In the end, McAuliffe relies on claim that "democracy is strengthened by having more citizens involved in the political process." This is obviously false as stated. Would allowing children citizens to vote and serve on juries and hold public office improve democracy? If McAuliffe really means that the more heads the better, then why not let non-citizen residents and nonresident visitors vote? If democracy depends on the silly idea that the more people who vote, the better the outcome, then eliminate all voting restrictions whatsoever and pay people to vote.

If democracy does not depend on the quality of the constituents, then democracy is a magic box. Any kind of electorate can produce excellent governance. All we need to do to make democratic government work is install voting boxes and hold elections. But we have seen some remarkable examples recently of the falsity of this idea in the Middle East, for example, where democratic election led to the empowerment of anti-democratic forces.

The Proper, Non-Political Way to Have Moved Forward With Concerns about Felon Disenfranchisement

Now, an intelligible position would be, not that all increases in voting eligibility strengthens democracy but that restricting felons from voting is not well tailored to improving democracy. If McAuliffe's position is that all felony convictions do not demonstrate an incapacity to contribute to democratic processes, then he should perform the kind of individualized determinations that his predecessors made in restoring voting rights. He could consider whether a murderer who had refused to pay restitution to a victim's family really would contribute to the democracy. He could consider whether someone convicted of a felony in connection with participation on a jury, e.g., taking bribes, really should be restored to their right to sit on a jury. He could do what the Virginia Constitution clearly enables him to do. All it would require is appointing a team of people to make the determinations. But, one suspects that doing justice and strengthening democracy is less his goal than supporting Hillary Clinton.

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