On March 25, 2019, Gov. Ralph Northam vetoed a bill that would have barred former felons from receiving certification as notaries public. In his veto message, the governor concluded,
Permanently prohibiting a person from exercising a civil right without a process to fully regain that right is antithetical to the concept of restorative justice. (emphasis added)
Despite an overwhelming vote of approval by popular referendum in Florida restoring the right to vote to ex-offenders, the state’s legislature recently passed a law that would require former felons to clear up outstanding fines, child custody, court costs, and other remnants caused by incarceration before the right to vote is restored. Critics contend that this maneuver is nothing more than a poll tax.
Voting disenfranchisement and confiscation of a criminal’s property (or livelihood) is rooted in ancient Greek and Roman jurisprudence. Criminal violators of a social norm were characterized as outside the law, or outlaws. In English law, outlaws might also be subject to having their property confiscated by the realm. This feature underlay development of the due process provisions of the US Constitution and, in particular, the eminent domain clause in the Fifth Amendment.
At the same time that the Thirteenth Amendment abolished slavery and involuntary servitude, it allowed for an exception where the confinement was punishment for a crime. Underlying this approach is the reliance of our criminal justice system on retributive justice, i.e., punishment for violators. In contrast, the point of restorative justice is rehabilitation.
Interestingly, restorative justice is a social hallmark of aboriginal and Native American nations and is the primary consideration in Canadian criminal justice. Retributive principles originated largely from theological precepts mostly in early European countries which, in turn, were seeped in biblical mores attributable to a harsh god and primitive juridical behavior. Lately, the conflict between the two principles has been manifest in the United States as state jurisdictions address felon disenfranchisement and its collateral effects upon violators, as Governor Northam’s message indicated.
Up until the late 1970s, rehabilitation had a driving force in the US criminal justice system and a correlative of retributive justice. That focus collapsed following studies that demonstrated that rehab had virtually no impact upon recidivism and in the face of rising crime.
The Virginia and Florida examples are replaying in other states, where the felon voter disenfranchisement debate conflates with the larger conflict concerning expansion of voter rights. From such conflicts and debate compromises will emerge, ones hopefully advancing the progress of society toward a less punitive attitude and more focused on a criminal justice system that stresses a more productive, meaningful life for the formerly incarcerated.