Commentary

Is the United States too hard on felons?

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I have never been in jail. I have never been arrested. But I am probably a felon, and so are you. There are so many laws (too many for even the government to count), and the punishment for being a felon can be crushing.

Some felonies may sound scarily familiar: taking a sick day when you aren’t sicktelling your friends about a bad company, or getting lost in the woods.

Some of the crimes on the books are simply bizarre. One law makes it a crime to sell “Turkey Ham” as “Ham Turkey” or with the words “Turkey” and “Ham” in different fonts (21 USC §461 & 9 CFR §381.171(d)); another makes it a federal crime to handle a crate of imported primates without wearing waterproof shoes (42 USC §271 & 42 CFR §71.53(i)(6)(iii)(C).

There are thousands and thousands of crimes on the books. Many, however, are vague. If and when you are arrested for and convicted of one of these many crimes, your rights begin to disappear, very quickly.

Felons lose the right to vote and the right to bear arms. They lose parental rights with their biological children and the right to adopt children. The ability to travel, hold certain jobs, live in certain neighborhoods or serve on a jury, all gone. Imagine losing parental rights as a felon because you brought a cucumber out of the Carolinas. (7 USC §7734(a)(1)(B) & 7 CFR §301.80(b)(12))

The law is complex, and every American is vulnerable to the whims of a complicated and burdensome system.

Even Congress can’t wrap its head around the number of federal crimes they have created. According to an article by FreedomWorks:

“In 2013, the House Over-criminalization Task Force instructed the Congressional Research Service to provide a complete accounting of all federal crimes. The agency, however, was unable to provide the information because, according to Chairman Jim Sensenbrenner, “they lack the manpower and resources to accomplish this task.”

Complexity has led to abuse of the criminal code in the United States. Some statutes are bizarrely specific:

It is a federal crime to make loud and unusual noises at the post office. (18 USC §3061(c)(4)(B), 39 CFR §232.1(e) & (p)(2))

Other statutes are dangerously broad:

“corruptly or by force or threat of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [taxes].”Marinello v. United States

Could a prosecutor, for example, argue that someone should be made a felon if they lead the public to believe “taxation is theft” by posting it repeatedly across social media? Endeavoring to impede the administration of taxes is a life goal of some of my dearest friends.

Though a law can be ruled void because of its vagueness, it is the government which bears the responsibility of ruling that its own texts are overly vague. While citizens can prevent enforcement of bad laws through mechanisms like jury nullification, those likely to support jury nullification are sometimes prevented from serving on juries.

Jury nullification also requires that a case reach a jury instead of an early settlement. In the modern age of the plea deal, “innocence is irrelevant” when considering whether someone is guilty in the eyes of the law.

Proof? Who Needs It?

In the federal judicial system, claims of guilt must be proven “beyond a reasonable doubt.” In colleges across the country, the standard of proof needed to convict someone of a crime is only “more likely than not,” or a 51 percent likelihood of being found guilty. Beyond the criminal code itself, the enforcement and delivery of punishment has been a problem for years.

The result in the college system has been lawsuits against some of the most elite schools in the country who have expelled students under a lower burden of proof.

In courts, there is a higher burden of proof, but there are still a significant number of errors. Not counting plea deals, which have become pervasive in America, it is estimated that between two and ten percent of all convictions in the United States are made in error.

In the United States there are 2.3 million people in prison and up to 230,000 of these individuals could be innocent. Above and beyond those hundreds of thousands, how many committed the “crime” of breaking immoral, overly broad or plainly inappropriate laws?

No wonder Americans are clamoring for criminal justice reform – the system is unfairly punishing our friends, family and neighbors.

Does having a felony conviction make someone a bad person?

Some people do very bad things. But the devil is in the details when evaluating whether felons are bad people. There is power in the messaging we receive regularly. We are told that felons are inherently bad people. Some say they are irredeemable and can be cast away. We are told some people are lesser, and therefore undeserving of the same rights as the rest of us in society.

That is not a universal truth. Our legal system does not account for the gray area. We are all felons if the state decides to target us. Despite the murky legal landscape, the hardline talking point remains the same:

“The less ‘onerous’ way to avoid losing the right to vote is simply don’t commit a felony.” Gary Beatty

When we provide massive power to those who write and enforce laws, the scales of justice tip back and forth. There are simply too many laws. Speaking out has historically been punished by overreaching governments. Today, however, these lessons seem forgotten.

Political actors call daily for their opponents to be silenced by force. Stripping felons of fundamental rights and freedoms is a dangerous game. What happens when your political opposite wishes to silence you?

If we allow the fundamental individual rights of felons to be taken away, we may be voluntarily forfeiting our own rights, and the rights of generations to come.

About Conner Drigotas

Conner Drigotas is the Director of Communications and Outreach at the Fairness Center, a nonprofit public interest law firm helping those who have been hurt by public-sector union officials. Prior to joining the Fairness Center, Conner managed local, state and federal political campaigns, and worked in the financial industry developing financial strategies for at-risk populations. He is also a wedding officiant. A native Mainer, Conner spends his free time hiking, fishing, and hunting with his fiancé Danielle. All opinions expressed are his own.

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