Chris Uggen's Blog: voting crimes "lack the same gravity as a homicide"

Saturday, September 24, 2005

voting crimes "lack the same gravity as a homicide"

the strib reports that a woman serving a probation sentence for theft voted in a closely contested minnesota mayoral race last year, casting a ballot in a race in which her husband won by a slim 8-vote margin. Hennepin County Attorney Amy Klobuchar, who happens to be running for US senate, has charged Linda Gilbert with a felony for registering to vote while ineligible.

Court documents indicate that in July, when authorities interviewed Linda Gilbert about the matter, she admitted to voting even though she knew she had lost her right to do so. Klobuchar said her office usually handles 15 to 20 election crime cases -- involving ineligible voters or people voting more than once -- each year after a major election cycle.

ms. gilbert, the current first lady of long lake, minnesota, must be very honest to admit that she knew she had lost the right to vote and voted anyway. still, it seems hard to believe that a thief who did 60 days in the workhouse is now going to catch a new felony for voting -- in her husband's election. here's the kicker, though:

Such crimes lack the same gravity as a homicide, Klobuchar said, but they still need to be prosecuted. "We have to protect the integrity of our elections."

i'm wondering about that "lack the same gravity as a homicide" quote. is it a joke? nowhere in the story is it mentioned that felony probationers can vote in 19 states or that the minnesota legislature considered enfranchising probationers and parolees this spring (i drafted a short report on the impact of this change in march). minnesota makes heavy use of probation and light use of incarceration, so ms. gilbert and thousands of others would have been able to vote without risking a felony conviction. under the proposal the total disenfranchised would have shrunk from an estimated 55,551 to 13,825, or from about 1.5 percent to about 0.4 percent of the voting-age population (and from about 12 percent to 3.5 percent of the African American voting age population).


At 7:51 AM, Anonymous Anonymous said...

Chris, I am no fan of Klobuchar (at all!), but based on the info in your blog I have to defend her. The bizarre reference to homicide aside, why should she not pursue that prosecution? There was a violation of law, there was evidence, and her job is to prosecute felonies. There is something to be said about the rule of law, and I am apprehensive about prosecutors not enforcing laws they might disagree with. To me it seems irrelevant what 19 other states do or what the MN legislature “considered.” If there is frustration, they (the legislature) should be the target.

I realize prosecutors “neutralize” the law quite often by not always enforcing it. But unless the Hennepin County Attorney’s Office shows a pattern of discrimination in its use of discretion, I don’t think Ms. Klobuchar is the correct target of criticism – at least not on this one.

At 8:50 AM, Blogger Penn State Punk said...

I too am no fan of either the law or Klobuchar.... but she doesn't make the law. Setting aside election politics (running as a democrat, she would get killed if she didn't prosecute), and her poor reference to homicide..... it seems to me she attempted to signal she wasn't in total agreement with the law, yet has a duty to enforce the law.... what more can or should she do?

At 10:37 AM, Anonymous chris said...

anonymous and punk, you both make a good point. my post was unclear, but i'll try to explain why i reacted as i did to this case. i didn't mean to rip the county attorney (though re-reading the post i can see how i gave that impression) -- my beef was more with the criminalization of voting, the decision to charge, and with the reporting of the issue.

on criminalization, i'm reacting to the idea that we've made the simple act of voting a felony-level offense. ms. gilbert didn't vote twice or sell her vote or rig voting machines or turn legal voters away at the polls or destroy the votes of others. she just showed up at the polls and cast a ballot. if i get into a bloody fistfight today at a minneapolis concert, after snorting coke and driving drunk, and then go home and beat my spouse, none of these offenses will rise to the level of a felony. of course, i am not currently on probation for felony-level theft. still, think about the logic here. in any recidivism study, ms. gilbert would be classified as failing probation for voting. it would sure look strange, in say, my competing risks analysis of the time to different types of crime by sex offenders on probation (success? no. violent recidivist? no. new sex crime? no. property reoffense? no. drug crime? no. other? yeah -- i guess we'll put it there ).

finally (and here's where our county attorney enters the picture), prosecutors have great discretion in the decision to charge such crimes. in many (probably most) jurisdictions, DAs decide that charging an otherwise successful probationer with a new felony for an act like voting is "piling on." the milwaukee journal-sentinel called me when they studied the issue a few years ago. if i'm not mistaken, they found that "illegal voters" tended to be those convicted of minor offenses who were generally making a successful adjustment in their communities. when i asked the reporter what the typical case would be, she said "probably a woman who got too much money in a welfare check."

as someone who studies the issue, my perspective on this might be a little skewed. still, i hoped that the story would have raised some of these questions. at minimum, the reporter could have asked whether our county attorney prosecutes the other "15 to 20 election crime cases" each year so vigilantly (and, if not, why not?).

At 11:22 AM, Blogger Penn State Punk said...

To sort of steal from a movie.... "you had me UNTIL" the paragraph that started with finally.

You wrote "finally prosecutors have great discretion in the decision to charge such crimes."

Regardless of your beliefs, I still think its a tough sled to advocate that prosecutors should ignore clear felony violations of the law. I agree that in some circumstances they do, but advocating the action..... its a slippery slope and the logic can easily, and fairly, be turned on its head by advocates of other positions.

I get the passion and science you bring to the issue, but what if prosecutors didn't enforce some gun laws?

If its on the books, and the Star Trib calls her on it, she is really in a box. It seems to me, the fight is with the lawmakers.

At 2:54 PM, Anonymous chris said...

we'll have to disagree there, punk. the percentages vary across jurisdictions, but in the federal system only about 61% of suspects in all offense categories are prosecuted (Compendium of Federal Justice Statistics). the decision to prosecute depends on the prosecutor's priorities and resources, laws governing each type of offense, the strength of evidence in each case, the harm caused by the offense, and whether the prosecutor views the intent as criminal in nature. i think your gun law example makes my case -- prosecutors routinely ignored most weapons offenses in many jurisdictions until very recently, and prosecutors still don't enforce gun laws (as the NRA reminds us in their PSAs). i know that in the real world the strib "calling her on it" has some impact, but county attornies defend decisions to charge or not to charge every day -- by referencing intent, priorities, resources, and community standards. anyway, i really don't have a beef with klobuchar in this case. i just wanted to point out here that many far more serious crimes routinely go unprosecuted despite strong evidence (e.g., when a parent's obvious neglect results in a child's death). again, my main point was about the criminalization of voting and the uncritical acceptance of the laws by the press and the county attorney.

At 4:04 PM, Anonymous Ryan said...

Sorry to chime in again, but I'm with the Punk on this one (I formerly wrote as "anonymous"). I too appreciate the substance of your argument Chris, but the comparison to homicidal child neglect is pretty serious. My guess (I have no data on hand) is that the ratio of suspected to prosecuted child endangerment cases resulting in death is much smaller than the ratio of suspected to prosecuted election fraud cases. And if you are going to prosecute an election case, why not this one? A close election where the "deviant" has an interest in the outcome casts an illegal vote that was nearly decisive? Seems ripe for prosecution.

I'm more torn on your comment about the media coverage. Is it the media's duty to provide a broader context about this? If the article is supposed to be an objective report of this prosecution than I don't think it’s necessary.

Again, I think the prosecutor gets a pass on this and the legislature is the sole target (to state it polemically).

At 7:21 PM, Anonymous chris said...

fair enough, ryan. maybe i'm all alone on this one, but let me try again. first, i think you'll be waiting a long time for legislators to clean up the statutes -- some states still have "miscegenation" and sodomy statutes on the books. the prosecutor really brings a case for "the people" and sometimes the people are best served by something other than full enforcement (e.g., marijuana possession, prostitution). so, i think a county attorney has a right and a duty to develop a coherent set of priorities for prosecution -- both regarding the merits of individual cases and the office's policies toward classes of crimes.

second, i think "illegal voting" prosecutions are more rare than you suspect, unless you are counting cases in which there is evidence of practices such as "double-voting" or paying for votes. i've certainly never heard of a probationer getting a new felony conviction for simply showing up and casting a ballot (though this doesn't mean it hasn't happened). i know the milwaukee d.a. has threatened to prosecute, but don't think he followed through. in washington the issue arose in king county last year, but again i don't believe anybody got a new felony conviction for voting. it doesn't mean that minneapolis can't be the first to explore this exciting new frontier, it just means that the norm is likely to be non-enforcement.

third, given the quality of the evidence, you asked, "why not this case?" you are probably correct that there is more evidence here than in other cases (where they are simply matching lists). i think deciding to prosecute one case and ignore the others, however, would be a bad form of selective prosecution. on the other hand, formulating a new policy that would vigorously prosecute any voting by probationers seems like a bizarre priority for a county attorney, especially given recent staff cutbacks. the cases would likely number in the hundreds. based on a comparison of voting lists and community supervision lists, there were about 350 in one Milwaukee election recently and at least that many in Seattle in 2004.

so, there's no reason you can't give the prosecutor a pass here, but i'll still disagree. when i interned in a certain public defender's office i routinely saw "good cases" in which there was enough evidence to convict disappear. this was often because of the judicious discretion of the county attorney's office (e.g., "she forged it to make rent after her husband beat her up and left her" or "do we really need to put this old man in jail?"). in this case, i'd argue that the costs of prosecution (and, heaven help us, incarceration) for such acts are prohibitive and likely inhumane for the citizens who are otherwise making a successful transition to the community.

this might be where my objectivity is colored by seeing the faces and hearing the stories of men and women who are trying their best to become "stakeholding" citizens despite a past felony conviction. again, recidivism by voting seems like "piling on" to me. in the bizarro world in which i am elected d.a., i would use press inquiries or charges of non-enforcement to rearticulate my priorities -- which, for me, would involve predatory crimes of homicide, criminal sexual conduct, robbery, assault, and serious property offenses against the county's citizens. they might vote me out, of course, or they might even elect me senator :)


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