"Race, Poverty and Felon Disenfranchisement,"by Marc Mauer July/August 2002 issue of Poverty & Race
On Election Day 2000 in Florida, in the midst of all the dimpled ballots and hanging chads, Thomas Johnson stayed home. Johnson, the African American director of a Christian residential program for ex-offenders, wanted to vote for George W. Bush, but was prevented from doing so by Florida law. In 1992, Johnson had been convicted in New York of selling cocaine and carrying a firearm without a license. After serving his sentence and moving to Florida in 1996, Johnson found that as an ex-felon he was barred from the voting booth. He was hardly alone in this situation: at least 400,000 others in Florida who had theoretically “paid their debt to society” were also frozen out of the electoral process. Nationwide, four million Americans either serving a felony sentence or having previously been convicted of a felony were also forced to sit out the 2000 election.
The laws that kept these citizens home on Election Day can be traced back to the founding of the nation. In retrospect, it is not terribly surprising that felons were excluded from political participation, since the majority of the population was excluded at the time. The founding “fathers” granted the vote only to wealthy white male property holders, leaving women, African Americans, illiterates and the landless, as well as felons, excluded. Thus, political participation in the new democracy was extended to just 120,000 of the two million free Americans (not counting the more than one million slaves and indentured servants) at the time, or about 6% of the population. Over the years, all of these exclusions have been removed – save the barriers against felons – and we now look back on them with a great deal of national embarrassment.
Exclusion of felons from the body politic derived from the concept of “civil death” that had its origins in medieval Europe, a designation meaning that a lawbreaker had no legal status, and dishonor and incapacity were imposed on his descendants. Land owned by the offender, for example, could not be passed along to heirs. The concept was brought to North America by the English in the Colonial period. After the Revolution, some of the English common law heritage was rejected, but voting disqualifications were maintained by most states. Two hundred years later, every state but Maine and Vermont (which allow prisoners to vote, as well as ex-felons) has laws that restrict the voting rights of felons and/or former felons. Forty-eight states and the District of Columbia do not permit prison inmates to vote, 32 states disenfranchise felons on parole, and 28 states disenfranchise felons on probation. In addition, in 12 states a felony conviction can result in disenfranchisement for life even after an offender has completed his or her sentence. Thus, for example, an 18-year-old convicted of a one-time drug sale in Virginia who successfully completes a court-ordered treatment program and is never arrested again still has permanently lost his voting rights, unless he receives a gubernatorial pardon. All states that disenfranchise ex-felons maintain a process by which such persons can have their rights restored. But in practice this is a cumbersome and costly process, and one which few ex-felons are aware of. In a recent two-year period in Virginia, for example, 404 ex-felons of a total of more than 200,000 had their rights restored.
While the issue of disenfranchisement would raise questions about democratic inclusion at any point in history, the dramatic expansion of the criminal justice system over the past 30 years has swelled the number of persons subject to these provisions to unprecedented levels. Currently, 2% of the adult population cannot vote as a result of a current or previous felony conviction. As a result of a decade of increasingly punitive legislation pertaining to juvenile offenders, far more young people are now tried in adult court and convicted as felons. Ironically, these felony convictions disenfranchise teenagers, sometimes for life, even before they are old enough to vote. And given the vast racial disparities in the criminal justice system, it is hardly surprising -- but shocking nonetheless -- to find that an estimated 13% of African American males are now disenfranchised.
The enfranchisement of the black population in the South that came with Reconstruction immediately following the Civil War quickly met with resistance from the white establishment. During the post-Reconstruction era in many states this took the form of the poll tax and literacy requirements. A number of Southern states also tailored their existing disenfranchisement policies with the specific intent of excluding black voters. This was a measure designed, says scholar J. Morgan Kousser, author of The Shaping of Southern Politics, to provide “insurance if courts struck down more blatantly unconstitutional clauses.”
The disenfranchisement laws adopted in a number of Southern states were not at all subtle, often requiring the loss of voting rights only for those offenses believed to be committed primarily by blacks. In Mississippi, for example, the 1890 constitutional convention called for disenfranchisement for such crimes as burglary, theft, arson and obtaining money under false pretenses, but not for robbery or murder. In the words of a Mississippi Supreme Court decision several years later, blacks engaged in crime were “given rather to furtive offenses than to the robust crimes of the whites.”
Other Southern states – Alabama, Louisiana, South Carolina and Virginia -- followed this pattern as well in their targeting of “furtive offenses.” The intent of such policy was made clear by the author of the Alabama constitution provision, who, according to Andrew Shapiro, writing in the Yale Law Journal, "estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes." Thus, by the convoluted logic of these provisions, a man would be disenfranchised if convicted of beating his wife but not if convicted of killing her. Alabama’s constitution also barred voting for anyone convicted of crimes of “moral turpitude,” including a variety of misdemeanors. Here, too, the intent and effect were quite obvious, resulting in ten times as many blacks as whites being disenfranchised, many for non-prison offenses.
These policies were not of fleeting duration. Alabama’s disenfranchisement law for offenses of “moral turpitude” was in place until 1985 before finally being struck down by the U.S. Supreme Court due to its discriminatory intent and impact. And while Mississippi continued to bar many petty offenders from voting, it did not begin disenfranchising (the perceived disproportionately white) rapists and murderers until 1968.
Disenfranchisement and the War on Drugs
While one might debate whether the intended effect of disenfranchisement policies today is to reduce minority voting power, it is inescapable that this impact could have been predicted as a logical consequence of the nation’s “wars” on crime and drugs. The five-fold increase in the nation’s inmate population since the early 1970s has had a disproportionate impact on persons of color. Much of this was due to the inception of the 1980s “war on drugs,” as a result of which the number of persons incarcerated for a drug offense rose from 45,000 in 1980 to nearly a half million today. Blacks and Latinos now constitute four of every five drug offenders in state prisons, with significant disparities in federal prisons as well. A considerable body of research documents that these figures are not necessarily a result of greater drug use in minority communities but rather of drug policies that have employed a law-enforcement approach in communities of color and treatment orientation in white and suburban neighborhoods. And the greater the number of minority offenders in the system, the greater the rate of disenfranchisement.
Disenfranchisement and Electoral Outcomes
At modest rates of disenfranchisement, such a policy is clearly of concern to an individual felon but is unlikely to affect electoral outcomes in any significant number of cases. But at the levels that have been achieved in recent decades the issue is likely to have a profound impact on actual electoral results.
Sociologists Jeff Manza of Northwestern University and Christopher Uggen of the University of Minnesota have produced a sophisticated model for estimating the number of disenfranchised voters in each state and the effect of their absence on elections for national office. Uggen and Manza assume that felons and former felons would vote at lower rates than the (already low) voting rate for the entire population, but that they would be more likely to vote Democratic, given that they are disproportionately comprised of minorities (an estimated 38% are African American) and poor and working-class whites. Even with this projected lower turnout they conclude that disenfranchisement policies have affected the outcome of seven U.S. Senate races from 1970 to 1998, generally in states with close elections and a substantial number of disenfranchised voters. In each case, the Democratic candidate would have won rather than the Republican victor. Projecting the impact of these races over time leads them to conclude that disenfranchisement prevented Democratic control of the Senate from 1986
Supporters of felon disenfranchisement policies contend that regardless of their outcome these policies are important for several reasons. One is described as the need to preserve the “purity of the ballot box” from the “invasion of corruption.” In other words, ex-felons would presumably vote for policies that help criminals and thwart the legitimate interests of otherwise law-abiding members of the community. But it is rather difficult to imagine a scenario whereby the larger voting public is seduced into supporting “pro-criminal” candidates or policies through the organized efforts of a felon voting bloc.
Perhaps a less fanciful scenario relates to drug policy. As the “war on drugs” has swelled prison populations and taken a disproportionate toll on minority communities, considerable opposition has developed to mandatory sentencing and related policies. In some neighborhoods, substantial numbers of people are returning home after serving several years in prison for low-level drug offenses. Arguably, their voices and votes, along with those of their neighbors, might be successful in electing candidates who support scaling back harsh drug laws. But is there a policy rationale that justifies excluding persons who have experienced the impact of such laws from participating in the political consideration of their validity?
Disenfranchisement is sometimes supported as a legitimate element of punishment for a criminal offense, but this is curious in several respects. While all other aspects of sentencing are expected to be proportional to the offense involved and are imposed by a judge on an individual basis, disenfranchisement is an across-the-board penalty imposed on mass murderers and dope smokers alike. Further, criminal convictions do not otherwise result in the loss of basic rights. Convicted felons, including prisoners, maintain the right to divorce, own property or file lawsuits. The only restrictions generally placed on these rights are ones that relate to prison security concerns: thus, an inmate may subscribe to Time magazine but not to a publication that describes the production of explosive devices. Conflating legitimate punishment objectives with the denial of constitutional rights sets a risky precedent.
While the rationale in favor of disenfranchisement is hardly compelling, these laws are actually counterproductive and out of line with evolving international norms. First, disenfranchisement policies are in sharp conflict with the goal of promoting public safety. Whether an offender has been sentenced to prison, probation or some other status, a primary goal of the criminal justice system and the community should be to reduce the likelihood that the person will re-offend. One means by which this can be accomplished is through instilling a sense of obligation and responsibility to the community. Those who feel some connection to their fellow citizens are less likely to victimize others. As former Supreme Court Justice Thurgood Marshall stated in his dissent to the 1974 Richardson v. Ramirez case: “[Ex-offenders] … are as much affected by the actions of government as any other citizen, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of a right to vote to such persons is hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.”
American disenfranchisement policies are also quite extreme by the standards of other industrialized nations. In no other democracy are convicted offenders who have completed their sentences disenfranchised for life, as is the case in a dozen states. The handful of nations that restrict voting rights for a period of time after the conclusion of a prison term (such as Finland and New Zealand) do so only for several years and only for electoral offenses or corruption. A number of nations, including ones as diverse as the Czech Republic, Denmark, Israel, Japan and South Africa, permit inmates to vote as well.
In recent years, the increased attention devoted to this issue has resulted in a reconsideration of some of the more extreme state policies. In 2000, Delaware adopted a measure repealing the state’s lifetime ban on ex-felon voting (imposing a five-year waiting period in its place), and the following year New Mexico did away with its lifetime ban as well. Connecticut went further, extending voting privileges to felons currently on probation. In 2001, the bipartisan National Commission on Federal Election Reform, co-chaired by former Presidents Ford and Carter, recommended that states allow the restoration of voting rights for felons who have completed their sentence. And in 2002, the governor of Maryland signed into law a measure that scales back the lifetime ban on most second-time felons to a three-year waiting period after completion of a sentence. While Congress is limited in its authority over state voting provisions, legislation has been introduced in the past several years to permit ex-felons to vote in federal elections, even if barred by their states from voting in state elections. An amendment to this effect in the Senate electoral reform legislation was introduced by Sen. Harry Reid (D-NV) in 2002, but was defeated in a 63-31 vote. In the wake of the national discussion generated over electoral problems and reforms, we are likely in the coming years to see a renewed focus on this area of public policy.
The irony of the combined impact of American disenfranchisement policies, along with the massive expansion of the prison system, is that a half century after the beginnings of the Civil Rights Movement, increasing numbers of African Americans and others are losing their voting rights each day. As the Western democracy with the lowest rate of voter participation, it is long past time for the U.S. to consider means of bringing more Americans into the electoral process and end the practice of excluding large groups of citizens.
Marc Mauer (email@example.com) is the Assistant Director of The Sentencing Project (514 10th St. NW, #1000, Wash., DC 20004, 202/628-0871) and the author of Race to Incarcerate (The New Press, 1999), which was a semifinalist for the Robert F. Kennedy Book Award. This article is adapted from “Mass Imprisonment and the Disappearing Voters,” in Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (The New Press, forthcoming 2002).
Research and further information on felony disenfranchisement can be found at www.sentencingproject.org.
The Sentencing Project, along with twelve leading national civil rights and civil liberties organizations, is sponsoring a National Symposium on Felony Disenfranchisement in Washington, September 30-October 1. The Symposium is designed to bring together national and local advocates, researchers and policymakers to develop strategic approaches to the issue. Information and registration materials available on their website or by contacting the Project.
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