Vol. 1 No. 11 March 2003

Uncommon Denominator

The Newsletter of the Commonweal Institute

http://www.commonwealinstitute.org/

“Let every man make known what kind of government would command his respect,

and that will be one step toward obtaining it.”

– Henry David Thoreau

TALKING POINTS

Two hundred years ago, most Americans – including unpropertied men, women (propertied or not), African Americans, soldiers, illiterates, and non-English-speakers – could not vote. Today, there’s just one group that, as a matter of law, is routinely barred from voting: felons.

Progress, certainly. But that remaining restriction – “criminal disenfranchisement” – is a doozy. About four million U.S. citizens are now barred from voting because of a criminal conviction. The majority of these people are not incarcerated – either because they’re on probation or parole, or because they’ve completed all elements of their sentence. The United States not only executes more offenders than does any other democracy, but it is the only democracy that indefinitely bars so many criminals from voting.

The penalty falls heavily on African Americans. Nationwide, one in seven black men has indefinitely lost the right to vote because of a criminal conviction. In Florida and Alabama, the number is one in three. These figures reflect not just differential conviction rates but the racially biased history of criminal disenfranchisement. Like such devices as the poll tax, the grandfather clause, and the literacy test, criminal disenfranchisement law came to prominence after Reconstruction, when a number of Southern states tailored their voting laws to target crimes of which blacks were more likely to be convicted than whites. The Supreme Court has struck down the most egregious of these Jim Crow provisions, yet the racially unequal effects of felon disenfranchisement remain.

Fortunately, criminal disenfranchisement laws have faced increased scrutiny recently. State legislatures are considering reform bills; courts are hearing fresh challenges to the policy, and reform advocates convened three national conferences in 2002 alone. The crucial catalyst was a 1998 report by The Sentencing Project and Human Rights Watch that reviewed the patchwork of state laws governing disenfranchisement and attacked arguments in favor of the policy. But it was the 2000 Presidential contest in Florida (where else?) that put a spotlight on state laws barring felons from the polls.

The spark was Florida’s disastrous effort to attack fraud. Details are still emerging, but the kindest version of the story is this: county clerks needed to clean up their voting rolls, eliminating those people who had died, moved, or been convicted of a felony. State officials hired a Georgia company called ChoicePoint to do the research. ChoicePoint claims that it generated a rough tally of all those who might have needed purging from the rolls, which county officials would then verify, voter by voter. But state and county officials say they thought they were getting the final list, and they promptly disqualified everyone on it. In the process, many living, local, law-abiding citizens lost the opportunity to vote – including a disproportionate number of blacks.

The most common argument in favor of disenfranchising convicts is that it constitutes part of their punishment. It appeals to the tough-on-crime mentality: “They broke the law, so they should pay. Why let ‘em vote?” At first glance, this position seems perfectly reasonable. Yet its logical flaws and drawbacks as policy are serious.

To be worth the name, criminal punishment must aim at some combination of incapacitation, deterrence, rehabilitation, and retribution. Disenfranchisement fails at all four. Incapacitation, first, would justify disenfranchising only those who commit vote fraud, not all felons. As for deterrence, it is unlikely that a man not deterred from crime by the prospect of a long prison sentence would stay his hand for fear of losing the vote. And disenfranchisement serves no conceivable rehabilitative goal; if the purpose of “corrections” is to bring offenders back into law-abiding society, maybe we should consider forcing them to vote.

That leaves retribution. We take rights from offenders to pay them back for taking the liberty, property, or happiness of others. Incarcerated convicts can’t travel, assemble, read, or enjoy privacy with the freedom the rest of us have. But these restrictions are necessary aspects of incarceration; convicts, after all, can still publish their writings, own property, and file civil lawsuits. Abandoning penal necessity as the standard for rights deprivation is a dangerous step. Moreover, it is not clear that taking away the vote in this automatic, invisible way – from a criminal population which we know to be largely estranged from politics already – has any retributive power whatsoever.

The history of voting in the U.S. is the story of “common-sense” policies being overturned. For centuries, policy-makers regarded universal suffrage as a lunatic notion. Those who owned no land lacked the “stake in society” necessary for responsible political participation; women lacked the right kind of reason to practice politics; it was absurd for people who couldn’t read their own Constitution to claim a role in lawmaking; and so forth. These ideas held sway for a long, long time, but modern Americans found them unpersuasive. It is now time for Americans to re-evaluate the wisdom of barring criminal offenders from voting.

Reforming and/or repealing criminal disenfranchisement laws would serve two vital public interests. First, it would help rehabilitate offenders and solidify their reintegration into society. Nobody, after all, has ever claimed that barring them from voting actually reduces crime. Indeed, the inverse is probably true: allowing the participation of ex-convicts in the political process might create the sense of personal investment that would lead away from a life of crime. More fundamentally, moving past criminal disenfranchisement would strengthen American democracy. It would expand the franchise by eliminating a major and unjustified exclusion – unjustified because punishments should serve a legitimate purpose and be linked to the actual offense. Democracy is weakened when we deprive people of political rights as a way of punishing them. Americans love to be tough on crime, but we shouldn’t be tough on the values that our legal system is supposed to embody.

WIT AND WISDOM

“I don't know if you've heard about this, but there are plans to turn the United Nations building in New York into an Outback Steakhouse.” – Craig Kilborn

AROUND THE CORNER

Ever since the rise of large-scale industrialization, social critics have feared the blurring of the line between humanity and machines. In the modern “information age” that fear has taken a new form: that computer technology will somehow reduce people’s identities to mere numbers – bytes, data, ones and zeros. Ironically, however, the newest generation of “biometrics” technologies is actually based on what is unique and most personal in individuals: their physiological idiosyncrasies. The question our society needs to confront is how biometrics should be used – under what circumstances and legal restrictions.

In general terms, biometrics involves comparing a person’s physical features to the image of those features stored on a computer system in order to determine or verify that individual’s identity. This “matching” can be done in real-time, and without the person’s knowledge, through the use of cameras placed at strategic locations. Biometric screening can also function much as ID cards do, authorizing access to particular locations or services. Although the forerunners of modern biometrics (most notably fingerprint inkblots) have been around for decades, digitalization has made the process much less cumbersome, allowing the automatic processing, database storage, and retrieval of people’s unique biological identifiers.

On March 13, 2003, the National Institute of Standards and Technology (NIST) released a report showing that facial recognition technology, though far from infallible, has improved dramatically since 2000. The study, which compared the facial recognition systems of 10 private companies, is likely to speed the adoption of this technology by law enforcement and other government agencies.

Proponents of biometrics point to a number of benefits. First, the technology provides convenience, sparing individuals the hassle (however minor) of having to remember passwords or recovering lost ID cards. Proponents also argue that it makes identity fraud more difficult, and can save organizations time and money in administrative costs. Biometrics might even have the potential of helping to protect civil liberties. Noted civil libertarian Alan Dershowitz, for instance, has argued that the technology could help eliminate racial or ethnic profiling by providing a more objective means of determining an individual’s legal status.

And the drawbacks? First, although it has made great strides, biometrics can also make mistakes. The NIST study found, for instance, that even in a favorable setting – with “reasonable controlled indoor lighting” – the best facial recognition systems have only a 90 percent success rate of matching individual subjects to a stored database of images. Moreover, these systems are better at identifying men than women and older people than younger ones, and they can be “outsmarted” by simple tricks such as placing a photo of an authorized individual in front of the lens.

Then there’s the problem of false positives. About 1 percent of the time, state-of-the-art facial recognition systems incorrectly identify an individual as appearing in a given image database. This might sound good, but that 1 percent can add up. Consider: a 1 percent error rate at Chicago’s O’Hare airport, with about 50 million passengers per year, would mean that 500 thousand travelers per year, or over 1000 a day, would be incorrectly linked to a “watch-list” of suspected terrorists. Compounding this problem is the possibility of human error in data entry, which could lead a computer to “correctly” match an individual’s biometric markers to a mistyped name on a database.

Once such errors are linked and circulated on multiple centralized databases, the difficulties of “cleaning” them might prove insurmountable. An innocent person’s iris prints, for example, falsely linked to a criminal record, could become the digital equivalent of a “scarlet letter,” subjecting the individual to unnecessary suspicion and intrusive surveillance. It’s hard enough already to correct errors in one’s credit report, and there’s no reason to think that correcting one’s identity files would be any easier.

Privacy and civil rights advocates are justifiably worried. Even when the technology works properly, personal data can be misused or abused. Without strong, clear guidelines, biometric applications are subject to “function creep.” Once the physiological records of tens of millions of people are collected in convenient databases, their use can slide from uncontroversial goals such as stopping terrorists to more mundane law enforcement objectives: tracking tax delinquents and deadbeat dads, for instance, or even collecting on parking tickets and library fines. This is not to mention the continued vulnerability of biometric data to theft, tampering, or unauthorized use or sale.

As the deployment of biometric technologies promises to become ubiquitous over the coming years, the need for explicit guidelines governing their use grows urgent. A potential national model in this regard is the “Biometric Identifier Privacy Act” proposed by the New Jersey state legislature last year. The act contains the following provisions:

· No person or organization shall obtain biometric identifiers for the purposes of commercial advantage without authorization.

· A person shall not sell, lease or disclose biometric identifiers to another person without individual consent and authorization, or when disclosure is required by law enforcement with probable cause.

· Organizations storing biometric identifiers are responsible for protecting them from unauthorized disclosure.

· Government shall not sell or disclose biometric identifiers without individual consent except in the case of a criminal investigation.

In the science-fiction movie “Minority Report,” Steven Spielberg and his team of futurists explore the commercial and law enforcement potential of biometrics in an entertaining way – retinal scans are used for everything from personalized advertising to fugitive chases, and a shady black market traffics in substitute eyeballs. But that future may be closer than we think, less hypothetical, and less entertaining. Now is the time to take the steps necessary to prevent the abuse of this seemingly inexorable technology.

QUOTED!

“A minority of feminist zealots rule the culture.” – Michael Savage, author, radio personality, and recent addition to MSNBC’s stable of talk-show hosts

CHECK IT OUT

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The Commonweal Institute does not generally promote specific companies, but Working Assets is an exception. They know what they’re doing, and they do it well. Check ‘em out.

HAPPENINGS

From March 6 to March 8, the Commonweal Institute’s co-founders, Leonard Salle and Kate Forrest, attended a Seattle conference of Responsible Wealth, a project of United for a Fair Economy. They made the acquaintance of Bill Gates, Sr. (father of you-know-who), who gave an outstanding presentation on the importance of retaining the inheritance tax. Gates argued, in essence, that the inheritance tax is necessary to prevent the emergence of an American (or anti-American) aristocracy of inherited wealth. Another conference speaker, David Korten, founder of the Positive Futures Network, hailed the Commonweal Institute as one of the key organizations that will be involved in realizing a vision of greater economic justice. With other attendees also expressing enthusiasm for what the Commonweal Institute is undertaking, the conference represented an important step in elevating CI’s profile.

CI is participating in a Silicon Valley working group formed to promote the use of biomimicry as a basis for technological invention in the high-tech industry. The endeavor is already underway at Hewlett Packard, which is developing projects based on the principle that natural processes provide an excellent model for human solutions to environmental problems.

Meanwhile, CI has begun planning a project to advocate national standards for the use of electronic voting machines – standards that would help to minimize the danger of election fraud that such technology poses (see the February issue of Uncommon Denominator for this story).

On February 22, Leonard Salle delivered an address to the Peninsula Democratic Club on the influence of think-tank messaging on electoral politics.

CI has retained an outstanding development consultant, Paul Sheldon, to help prepare for a major fundraising campaign later this year. Among other accomplishments, Sheldon helped Hunter and Amory Lovins start the Rocky Mountain Institute in Colorado in 1980.

ENDORSEMENTS

“It’s always good to put your brain in gear before you put your mouth in action. The folks at the Commonweal Institute do the heavy mental lifting so agitators like me can arm ourselves on the front lines of the ideological battles taking place every day in America. For too long progressives have walked fearful of their shadows, whimpering and whining about what’s wrong and fighting amongst themselves over crumbs. With the help of the Commonweal Institute, that time is over.” – Jim Hightower, national radio commentator, writer, public speaker, and author of If the Gods Had Meant Us to Vote They Would Have Given Us Candidates

GET INVOLVED

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