Felons, Voting, Guns, and the Restoration of Civil Rights

November 17th, 2011

Semantic question. Why do we refer to people who committed felonies and served their time (sentence and any supervised release) as felons. I’m not talking about from a sociological or a stigma perspective. Why is someone who commits a felony always known as a felon even after paying his or her debt to society? I think the reason may be legal in nature–felons are deprived of a host of civil rights. Among them are the right to vote, the right to keep and bear arms, for certain sexual crimes limitations on where you can live and with whom you can congregate, etc. Which brings me to something that has been in the news a bit recently. Restoring the right to vote for felons, and restoring the right to bear arms to felons. One is a civil right listed in the Constitution, the other isn’t (guess which is which).


First, the TImes had a piece about restoring the right to bear arms for felons.

Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found.

While previously a small number of felons were able to reclaim their gun rights, the process became commonplace in many states in the late 1980s, after Congress started allowing state laws to dictate these reinstatements — part of an overhaul of federal gun laws orchestrated by theNational Rifle Association. The restoration movement has gathered force in recent years, as gun rights advocates have sought to capitalize on the 2008 Supreme Court ruling that the Second Amendment protects an individual’s right to bear arms.

This gradual pulling back of what many Americans have unquestioningly assumed was a blanket prohibition has drawn relatively little public notice. Indeed, state law enforcement agencies have scant information, if any, on which felons are getting their gun rights back, let alone how many have gone on to commit new crimes.

While many states continue to make it very difficult for felons to get their gun rights back — and federal felons are out of luck without a presidential pardon — many other jurisdictions are far more lenient, The Times found. In some, restoration is automatic for nonviolent felons as soon as they complete their sentences. In others, the decision is left up to judges, but the standards are generally vague, the process often perfunctory. In some states, even violent felons face a relatively low bar, with no waiting period before they can apply.  …

That universe could well expand, as pro-gun groups shed a historical reluctance to advocate publicly for gun rights for felons. Lawyers litigating Second Amendment issues are also starting to challenge the more restrictive restoration laws. Pro-gun groups have pressed the issue in the last few years in states as diverse as Alaska, Ohio, Oregon and Tennessee.

Ohio’s Legislature confronted the matter when it passed a law this year fixing a technicality that threatened to invalidate the state’s restorations.

This quote stuck out at me:

Ken Hanson, legislative chairman of the Buckeye Firearms Coalition, argued that felons should be able to reclaim their gun rights just as they can other civil rights.

“If it’s a constitutional right, you treat it with equal dignity with other rights,” he said.

And some empirical data:

That question — whether the restorations pose a risk to public safety — has received little study, in part because data can be hard to come by.

The Times analyzed data from Washington State, where Mr. Zettergren had his gun rights restored. The most serious felons are barred, but otherwise judges have no discretion to reject the petitions, as long as the applicant fulfills certain criteria. (In 2003, a state appeals court panel stated that a petitioner “had no burden to show that he is safe to own or possess guns.”)

Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system. Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found. More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting.

And this:

By contrast, the restoration of civil rights, which is now central to regaining gun rights, is relatively routine, automatic in many states upon completion of a sentence. In some states, felons must also petition for a judicial order specifically restoring firearms rights. Other potential paths include a pardon from the governor or state clemency board or a “set aside”— essentially, an annulment — of the conviction.

Today, in at least 11 states, including Kansas, Ohio, Minnesota and Rhode Island, restoration of firearms rights is automatic, without any review at all, for many nonviolent felons, usually once they finish their sentences, or after a certain amount of time crime-free. Even violent felons may petition to have their firearms rights restored in states like Ohio, Minnesota and Virginia. Some states, including Georgia and Nebraska, award scores of pardons every year that specifically confer gun privileges.

Felons face steep odds, though, in states like California, where the governor’s office gives out only a handful of pardons every year, if that.

“It’s a long, drawn-out process,” said Steve Lindley, chief of the State Department of Justice’s firearms bureau. “They were convicted of a felony crime. There are penalties for that.”

And this about recidivsim:

Criminologists studying recidivism have found that felons usually have to stay out of trouble for about a decade before their risk of committing a crime equals that of people with no records. According to Alfred Blumstein, a professor at Carnegie Mellon University, for violent offenders, that period is 11 to 15 years; for drug offenders, 10 to 14 years; and for those who have committed property crimes, 8 to 11 years. An important caveat: Professor Blumstein did not look at what happens when felons are given guns.

There is a Times room for debate piece here.

Eugene Volokh had a post about felons regaining the right to bear arms under state law.

Volokh also writes about the right to vote.

Some people have asked whether court decisions recognizing that some felons have a constitutional right to bear arms — if their felonies are long enough in the past — would also extend to felons’ having a constitutional right to vote. I think the answer is “no,” because there’s a specific constitutional authorization for denying felons the right to vote. The Fourteenth Amendment expressly contemplates the constitutionality of such a restriction, in section 2.

Sentencing Blog has a post about whether restoring the right to bear arms to felons might reduce recidivism.

This comparative data would seem to at least support a plausible working hypothesis that restoring gun rights to felons might actually reduce recidivism and enhance public safety.  Of course, there is a huge apples/oranges problem in trying to compare these recidivism rates.  I certainly hope and expect that Washington aspires to restore gun rights to former felons who appear to pose the least risk to public safety, and thus we should hope and expect recidivism rates to be generally lower for these folks than for others with a felony record.  Still, given that recidivism rates are appear to be so much lower for those who get their gun rights restored, there is a reasonable basis for at least speculating that the process and grant of restoration of rights works to provide additional encouragement for these former felons to stay crime-free in the future.

ThinkProgress has a post criticizing the restoration of the right to keep and bear arms.