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When felons can vote their convictions

The recent US Senate election in Alabama focused some attention on the fact that “felons” (or at least some felons) in Alabama) can—and did—vote. 

 If you want to  see who these people might be, to find out what makes a person a felon—or what crime constitutes a felony—don’t expect any clarity.  It turns out that a felon is someone who is in prison, and a felony is “a serious crime.” 

Who goes to prison, of course, varies from state to state; and whether someone is charged with a felony for a crime they commit depends substantially on the attitude of the District Attorney.  The DA’s discretion to decide whether to go for a misdemeanor or felony charge is as broad and deep as the Grand Canyon. 

The federal government uses a specific but circular definition of a felony:  a felony is a crime punishable by death or imprisonment in excess of one year.  So for the feds, you’re a felon if you’re convicted of something that merits a year in prison (maybe tax evasion, animal cruelty, drugs) and you’re a felon if you’re convicted of murdering your neighbor.  A lot of leeway there.

An example of prosecutor’s discretion can be seen in the situation of the 200 people arrested for protesting at the January 20, 2017 inauguration of Donald Trump; as well as that of the Water Protectors protesting construction of the Dakota Access Pipeline. 

The J-20 protestors were charged with “felony rioting, inciting to riot, conspiracy to riot and destruction of property” among other charges , carrying a maximum sentence of 70 years. (The first 6 to go to trial were acquitted of all charges by a DC jury in December.)

Various individuals from the Water Protector’s stand have also been subject to multiple charges. One defender had his misdemeanor case dismissed and then refiled as a felony. Other charges brought were felony reckless endangerment, and felony terrorizing of law enforcement – plus additional misdemeanor counts (obstruction of a government function, preventing arrest, disorderly conduct). (1)

Historically, the US has denied felons the right to vote, but in recent decades the trend is toward restoration of that right, but how and how quickly varies from state to state.

In Maine and Vermont, felons never lose their right to vote, even while they are incarcerated. In 14 states and the District of Columbia, felons lose their voting rights only while incarcerated, and receive automatic restoration upon release.

In 22 states, including Washington State, felons lose their voting rights during incarceration, and for a period of time after, typically while on parole and/or probation. Voting rights are automatically restored after this time period. Former felons may also have to pay any outstanding fines, fees or restitution before their rights are restored as well. 

In 12 states felons lose their voting rights indefinitely for some crimes, or require a governor’s pardon in order for voting rights to be restored, or face an additional waiting period after completion of sentence (including parole and probation) before voting rights can be restored.

Prior to the summer of 2017, Alabama had a law that denied voting rights to felons guilty of crimes “involving moral turpitude” leaving interpretation of exactly what crimes to local registrars.  Threatened with a lawsuit claiming that the provision was discriminatory, Alabama Republicans passed a bill clarifying which convictions would cost someone the right to vote.   For example, crimes such as murder, rape and “enticing a child to enter a vehicle for immoral purposes” would result in the loss of voting rights; offenses such as drug possession or third-degree burglary would not.

In Alabama, an organized effort resulted in significant participation by “felons” (aka citizens, aka voters) in the December 2017 special election that put a member of the Democratic Party in office for the first time in a generation.

There are about 17,000 individuals incarcerated in Washington prisons at this time. All of them will be able to exchange their status as a felon for a new identify as a voter once they are no longer under the authority of the Department of Corrections. 

1See for more on the charges against Water Protectors.

The federal definition coupled with changes in immigration policy led Washington state legislators in 2011 to change the maximum sentence for a gross misdemeanor to one day less than a year to protect non-citizens from summary deportation. Whether that still helps is unclear…

RCW 9.20 footnote: “The legislature finds that a maximum sentence by a court in the state of Washington for a gross misdemeanor can, under federal law, result in the automatic deportation of a person who has lawfully immigrated to the United States, is a victim of domestic violence or a political refugee, even when all or part of the sentence to total confinement is suspended. The legislature further finds that this is a disproportionate outcome, when compared to a person who has been convicted of certain felonies which, under the state’s determinate sentencing law, must be sentenced to less than one year and, hence, either have no impact on that person’s residency status or will provide that person an opportunity to be heard in immigration proceedings where the court will determine whether deportation is appropriate. Therefore, it is the intent of the legislature to cure this inequity by reducing the maximum sentence for a gross misdemeanor by one day.”

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