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Stretching the Concept of Conflict Too Far
Wednesday, August 12th, 2009
Robert Wechsler
The concept of a conflict of interest is sometimes stretched far beyond
what government ethics laws say, usually by those making accusations
against government officials. But here is an example where a respected
judge stretched the concept even further. It comes from a decision by Judge
Friendly in Green v. Board of Elections of the City of New York,
380 F.2d 445 (2d Cir., 1967).
Although it does not use the word "conflict," this language effectively states that, because felons have broken a law and have been tried for it, even when they have done time and been otherwise punished for their crime, it would be a conflict for them to vote for those who make the laws, those who enforce the laws, and those who try and decide criminal cases.
When officials participate in a matter, they have a great deal of influence over its outcome. What influence does a single voter have? How could a voter benefit from a vote? How likely is it that a voter could find a candidate that would get rid of a criminal law he doesn't like, a prosecutor who might choose not to prosecute him, or a judge that might decide in his favor? Even were the former felon to vote against a prosecutor or judge involved in his case, what harm could that cause or what actual benefit would it bring him?
An official is expected to vote in the public interest. A voter is not. The few industrialized nations that restrict voting rights of convicted individuals do it for only a short time and only with respect to relevant offenses such as government corruption or voting. (For more on this, see Marc Mauer, "Mass Imprisonment and the Disappearing Voters" in Marc Mauer and Meda Chesney-Lind eds, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New Press, 2002).)
Robert Wechsler
Director of Research-Retired, City Ethics
---
it can scarcely be deemed unreasonable
for a state to decide that
perpetrators of serious crimes shall not take part in electing the
legislators who make the laws, the executives who enforce these, the
prosecutors who must try them for further violations, or the judges who
are to consider their cases.
Although it does not use the word "conflict," this language effectively states that, because felons have broken a law and have been tried for it, even when they have done time and been otherwise punished for their crime, it would be a conflict for them to vote for those who make the laws, those who enforce the laws, and those who try and decide criminal cases.
When officials participate in a matter, they have a great deal of influence over its outcome. What influence does a single voter have? How could a voter benefit from a vote? How likely is it that a voter could find a candidate that would get rid of a criminal law he doesn't like, a prosecutor who might choose not to prosecute him, or a judge that might decide in his favor? Even were the former felon to vote against a prosecutor or judge involved in his case, what harm could that cause or what actual benefit would it bring him?
An official is expected to vote in the public interest. A voter is not. The few industrialized nations that restrict voting rights of convicted individuals do it for only a short time and only with respect to relevant offenses such as government corruption or voting. (For more on this, see Marc Mauer, "Mass Imprisonment and the Disappearing Voters" in Marc Mauer and Meda Chesney-Lind eds, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New Press, 2002).)
Robert Wechsler
Director of Research-Retired, City Ethics
---
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