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February 24, 2005

Prison Segregation and Felon Disenfranchisement

The Supreme Court has decided that prison segregation used in California in an attempt to curb racially-based gang violence is subject to strict scrutiny, essentially striking the policy down as unconstitutional.

Given my principle of opposing judicial review, I'd normally side with Scalia and Thomas in dissent, who argue in Thomas's words, "Deference would seem all the more warranted in the prison context for whatever the court knows of administering educational institutions, it knows much less about administering penal ones."

Race is relevant in prisons, however much we might hate that fact, so reasonable recognition of race meant to improve the functioning of our society -- as with affirmative action -- should not be struck down because the state closes its eyes to the functioning of actual existing racism. California's approach of initial segregation may be stupid -- seemingly reinforcing race consciousness among prisoners -- but whether that is its effects is a sociological more than a legal question and no doubt better left to the political system to be debated by our citizens, including by those most effected by the policy.

Courts and Disenfranchisement: But the last point is the rub. My rejection of judicial power is based on respect for democracy and a recognition that even minority groups have great political bargaining power in a pluralistic system that is a far better tool for defending their rights than depending on the kindness of strangers on the Court. But prisoners have NO voting power and therefore no political power to bring their views into the public debate on how such segregation improves or harms their lives in prison. Unlike affirmative action, where no one would argue that whites potentially harmed by it are powerless in the political realm, this race-based gang segregation is imposed on people stripped of the right to vote, unable to protect themselves through the political process. By denying prisoners and then ex-felons the vote, we cast doubt on the democratic legitimacy of every decision made effecting those peoples lives.

Scalia and Thomas would strip governments of the ability to use affirmative action, despite the full political power of white voters to protect their own interests at the voting booth, yet see deference as the answer in dealing with prisoners denied any power in the democratic process.

I am a hard core proponent of judicial deference, but unprincipled positions like Scalia and Thomas, who mouth "deference" only when it suits their politics, show what a farce is conservative odes to judicial restraint. They don't really counterpose democracy as the alternative to judicial power, for they have little respect for that, as their decisions striking down affirmative action policies show.

Restoring the Vote: I do share the view that prison administration is not within the expertise or courts, so my view is that the best check on untrammeled power by those administrators is a political voice by prisoners at their statehouses. The conviction for a crime should not eliminate one's right to vote, an unacceptable policy in a country where we imprison millions of people for often minor drug crimes.

Felon disenfranchisement cases will be coming before the Justices in coming years; none of them will probably restore the vote to still-incarcerated prisoners, but maybe we should have a more real discussion on expanded democratic empowerment in our society as an alternative to the need for the judiciary to act as benevolent protectors of the disenfranchised such as prisoners.

Posted by Nathan at February 24, 2005 06:28 AM