“The mind of man is capable of anything — because everything is in it, all the past as well as all the future.” – Joseph Conrad
Manufacturing fear of crime and criminals, and exploiting the boogeyman of the convicted felon is a hallowed American political tradition. As researcher Anthony M. Platt wrote in the journal Social Justice in 1994, “Every politician running for office in the November elections recognized that law and order demagoguery was the ticket to success.” This certainly applies to presidential contenders; see Bush 41’s execrable 1988 Willie Horton ad, Bill Clinton’s interruption of his 1992 presidential campaign to fly back to Arkansas to ensure the execution of a mentally ill black man, and Donald Trump’s seemingly endless invocations of Chicago, “American carnage,” and racialized sexual assault.
None of this fear-mongering and dog-whistling will come as any surprise to anyone with even a passing familiarity with American politics. What may be surprising is that, in Arizona, people convicted of felonies are forced by law to help pay for some of the very campaigns that demonize them to achieve victory.
Paying for the privilege of the hangman’s noose
On November 3, 1998, Arizona voters passed Proposition 200, the “Clean Elections Act.” According to the Commission which oversees it, the Act provides “clean funding” to statewide and state legislative candidates, who want to campaign with public funds instead of private donations as a way of avoiding the influence of private donors. Essentially, candidates who choose to “run clean” must demonstrate they have community support by collecting a set number of $5 qualifying contributions. The Clean Elections Commission then gives these candidates public funds to run their campaigns. These public funds come from three places: 1) the $5 qualifying donations gathered by clean candidates, 2) civil penalties levied against candidates who violate the clean elections law, and 3) a 10% surcharge on civil penalties and criminal fines. It is this third funding source that deserves special scrutiny.
Under Arizona law, any time a court imposes a fine on a defendant for a civil violation (parking ticket) or a criminal violation (robbery), the court must also impose a 10% surcharge on that fine, which goes into the clean elections fund. In October 2002, the Arizona Supreme Court upheld the constitutionality of this law in the case of May v. McNally, and ruled that the surcharge was a “tax” that did not violate the First Amendment’s ban on compelled speech.
Requiring people convicted of crimes to help fund the campaigns of law & order candidates who will, if elected, make their lives even worse would startle Kafka himself – unless he was born in Arizona. Lest we think this does not actually occur, we need only examine some of the positions taken by the following “clean” elected officials:
- State Representative Mark Finchem (R-Tucson), who has been endorsed by Joe Arpaio and the Arizona Citizen’s Defense League.
- State Representative Bob Thorpe (R-Flagstaff), who likes to tweet about how the liberal media underreports black-on-white crime, and how former Attorney General Eric Holder is “soft on crime” because he doesn’t like how many black men are in prison.
- State Representative Becky Nutt (R-Clifton), who supports private prisons and thinks “drug and human smuggling are out of control.”
- State Representative Kelly Townsend (R-Mesa), who voted to lengthen the prison sentences of undocumented immigrants convicted of crimes.
- State Representative Anthony Kern (R-Glendale), who believes in “mandatory sentencing laws with stiff penalties to prevent violent criminals and predators from being released back onto our streets.”
“A society should be judged not by how it treats its outstanding citizens, but by how it treats its criminals.” -Fyodor Dostoevsky
What could be more cruelly ironic than forcing people convicted of criminal offenses – whose newly depressed job prospects already increase the difficulty of making ends meet – to fund their further political demonization? How about forcing them to pay for an electoral system they cannot participate in.
Arizona law holds that, once a person is convicted of a felony, they automatically lose a host of civil and political rights, including the right to bear arms, the right to serve on a jury and hold public office, and the right to vote. One may think this is appropriate for people convicted of murder, rape, and armed robbery. However, before we clamber up a soap box and preach about not doing the crime if you can’t do the time, we might want to pause and reflect on just how many acts qualify as felonies in Arizona these days. Here are 29 pages of them, an incomplete list that includes such horrors as branding an animal that belongs to another person, pandering, and filing a false bingo report.
Such over-criminalization extracts a heavy toll on our democracy; as of 2016, Arizona had the 8th highest percentage of disenfranchised voters in the nation; 221,170 people, or 4.25% of the State’s population, was ineligible to vote in the last election due to a criminal record. Elections are won and lost by far smaller numbers than this. In 2016 Representative Finchem beat his Democrat opponent by 9,998 votes – 4.5% of Arizona’s disenfranchised voters. Representative Thorpe won his race by 4,770 votes – 2.1% of disenfranchised voters. Representative Kern’s victory over his Democratic opponent was the thinest of all clean elections candidates; he won by 4,001 votes, a mere 1.8% of the Arizonans disenfranchised by a criminal conviction.
“That’s some catch, that Catch-22,” he observed. “It’s the best there is,” Doc Daneeka agreed.” ― Joseph Heller
The Clean Elections Act’s final insult to injury occurs when people with criminal convictions attempt to get their voting rights restored. The law automatically restores most first offenders’ civil rights once they complete probation or are discharged from prison, but only as long as they pay off all of the fines and restitution imposed as part of their sentence.
To see how the momentous injustice of this can play out, let’s assume for the sake argument that our neighbor, John Yossarian, pleads guilty to selling real estate without a proper license, which in Arizona is a felony offense. After his plea the court automatically revokes Yossarian’s right to vote, and orders him to pay a $10,000 fine. This means Yossarian must also pay a $1,000 surcharge to the state clean elections fund on top of that fine. He can no longer sell real estate, so Yossarian cannot get a good job and earn a significant income. After eighteen months he successfully completes probation and doesn’t get into trouble again, but working for minimum wage at a fast food restaurant means he has no extra money to pay either the fine or the surcharge. Consequently Yossarian’s right to vote is not restored, and he cannot vote against his state representative and their tough on crime platform in the 2018 election. Even if Yossarian does scrape together the $11,000 it will take to get his voting rights back, a percentage of that money will help fund his representative’s re-election campaign against a more progressive opponent who, unlike Yossarian’s representative, wants to end mass incarceration and over-criminalization.
This is the realty of the Clean Elections Act, and its injustice plays out hundreds of times a day in courtrooms all over our state. The intention behind the Act – ameliorating the effect of money on elections – may have been noble, but as is so often the case in our history, it is the poorest and most helpless among us who must pay the price for our noble efforts. That price isn’t cheap, and can be measured by the 221,170 Arizonans who could not vote in the last election for a better and more equitable society.
– Joel Feinman