New Virginia Report Highlights Challenges of Felon RE-Enfranchisement [UPDATED]

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Yesterday, Virginia Attorney General (and gubernatorial nominee) Ken Cuccinelli released the report of the Rights Restoration Advisory Committee formed earlier this year. From AG Cuccinelli’s remarks included as part of the news release:

For years, I have expressed concern about the ratcheting up of several low-level offenses from misdemeanors to felonies – “felony creep.” Many people in our communities have committed certain low-level, nonviolent offenses in the past; completed their sentences; paid all fines, court costs, and restitution; and have gone on to live law-abiding lives. We need a simpler way for those individuals who want to return to their place in society to be given a second chance and to regain their civil rights that were lost through a felony conviction.

We have to be tough on crime, but part of a successful criminal justice system includes rehabilitation and reentry into society. This benefits society as a whole by potentially reducing recidivism, as about 95 percent of those who go to prison come back out …

Currently, the only way a nonviolent felon can regain his or her civil rights is by asking the governor in writing to restore those rights, and a governor generally doesn’t act until he has received an application. The process can be slow and difficult, depending on the priority a governor’s office places on how quickly to turn around a decision and the sheer number of applications.

Gov. McDonnell streamlined the current process in 2010 by pledging to make restoration decisions within 60 days of application and by reducing the wait to submit an application from three to two years. I voiced my support back then and endorsed making it easier for those who had convicted certain nonviolent felonies and turned their lives around to regain their place in society. However, I was concerned that future administrations might not place the same priority on such efforts. Additionally, we had an unsuccessful attempt in the General Assembly this year to move forward a constitutional amendment to allow for a more consistent process.

So in March, I put together a bipartisan advisory committee to examine what could be done within the existing constitutional framework to improve the restoration of rights process.

The report of the bipartisan Committee reached the following conclusions:

1. The General Assembly cannot establish by statute a process for the automatic restoration of rights.

2. The Governor cannot institute by executive order an automatic, self-executing restoration of rights for all convicted felons in the Commonwealth of Virginia.

3. The Governor, however, may exercise his discretionary clemency power in a more
expansive manner to restore civil rights on an individualized basis.

4. The General Assembly through the appropriation act may facilitate a permanent function under the Office of the Governor to assist the Governor in the exercise of his discretionary clemency power so that all those who apply can be given timely consideration to have their civil rights restored.

5. The Governor in the exercise of his discretionary clemency power may decide the policy details of the process his Office will use for the restoration of civil rights within the existing constitutional framework.

The Governor possesses the authority to consider new approaches to the restoration of rights that could include proactive outreach and educational efforts addressed to those Virginians who have returned to the community after felony convictions but have not yet applied to have their civil rights restored. The details for such new approaches would be within the discretion of the Governor under his clemency power, so long as Governor’s action to remove political disabilities continues to be made on an individualized basis.

Virginia’s efforts to address the issue highlight the challenge associated with felony disenfranchisement – or in this case, RE-enfranchisement. Increasingly, policymakers are becoming aware of the large number of individuals denied the right to vote as a consequence of a felony sentence; however, while the process of losing one’s rights is relatively streamlined – all but automatic under most state laws – the process of of re-establishing those rights (or even finding out that they have been re-established) is anything but straightforward. In Minnesota, the state Election Integrity Task Force was unable to reach agreement on that state’s process, while in California the state continues to grapple with a court-ordered “realignment” which is transferring individuals from state to local control, making their voting status murky.

Virginia’s effort to take on the issue of felony dis- and re-enfranchisement is laudable, but like just about every other state recently that has faced the problem has concluded that “we need to fix that” without figuring out how to do so. The result is uncertainty for all concerned – election officials and voters alike. Here’s hoping all of those states can find a way past talking about the issue to identifying ways in which we can make the process of restoring rights as straightforward and understandable as the process of losing them.

UPDATE: Gov. McDonnell has announced this morning that effective July 15, he will use his case-by-case authority to send a letter to every non-violent felon his office can identify who has completed his or her “debt to society” – in essence, eliminating the waiting period and application requirement. Individuals convicted of violent felonies will still be subject to the waiting period and application process.