The term felony disenfranchisement (or, more specifically, felony voting disenfranchisement) refers to the denial of the right to vote to incarcerated persons and released ex-offenders who were convicted of certain classified crimes, though not necessarily felonies. Since the adoption of the practice in colonial America, felony disenfranchisement has become a common practice within the United States. This practice has been particularly harmful to racial minorities, who have had the ability to exercise their political clout compromised.
In the late first decade of the twenty-first century, nearly 5 million Americans—or one in forty-three adults—are currently without voting rights as a result of a felony conviction. Forty-eight states and Washington, D.C., deny the right to vote to felony offenders. Only Maine and Vermont do not impose felony disenfranchisement. Although there is variety in felony disenfranchisement legislative schemes, such legislation may generally be classified under three categories: permanent, modified permanent, or restorative disenfranchisement.
In a permanent disenfranchisement jurisdiction, a felony offender is denied the right to vote for life. Three states—Florida, Kentucky, and Virginia—deny the right to vote to all ex-offenders, and can thus be classified as permanent disenfranchisement jurisdictions. In these jurisdictions, the restoration of voting rights is still possible, but only through a pardon by the governor or by the action of the probation or parole board. Twelve states are modified permanent jurisdictions. Here, permanent disability is imposed only on certain classes of ex-offenders, and restoration may be subject to a waiting period.
In a restorative felony disenfranchisement jurisdiction, restoration is either automatic after incarceration, probation, or parole, or it is available after the ex-offender completes a designated process following incarceration, probation, or parole. The restorative process varies from jurisdiction to jurisdiction, and it is often too cumbersome, and sometimes too expensive, for most ex-offenders to successfully complete.
Racial minorities are disproportionately denied the right to vote by felony disenfranchisement legislation. More than a third of those disenfranchised are African-American men. It is estimated that 1,400,000 African-American men (or about 13% of African-American men) have been denied the right to vote by felony disenfranchisement legislation. The rate of disenfranchisement of African-American men is seven times that of the national average. In at least six states, one in four African-American men is permanently disenfranchised. Further, it is projected that if current disparities in incarceration continue, 30 percent of the next generation of African-American men will be disenfranchised over the course of their lives, and that in some states nearly 40 percent of African-American men will be permanently denied the right to vote.
The disparate disenfranchisement of African Americans is the result of both intent and effect. Felony disenfranchisement was specifically and consciously co-opted during the post-Reconstruction era as a tool— along with the poll tax and literacy requirements—to prevent blacks from availing themselves of the political clout that the Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution promised. White legislators of this era boldly asserted their racist desire and expectation that disenfranchisement would diminish the ability of African Americans to secure political power. Thus, southern states required the disenfranchisement of defendants convicted of crimes that the legislature associated with African Americans, although some of these crimes were not, in fact, felonies. These legislatures often refused to require the disenfranchisement of those crimes believed to be primarily committed by whites, such as murder, even though these crimes were much more severe than the offenses associated with African Americans, such as theft. The racially influenced categorization of offenses subject to disenfranchisement remained in place until the mid-1980s, when the U.S. Supreme Court struck down Alabama’s disenfranchisement scheme, which disenfranchised people for reasons of “moral turpitude.”
In the early twenty-first century, legislatures perpetuated and tolerated the predictable racial disparities produced by felony disenfranchisement. The disparate disenfranchisement rates were the product of the racial disparities produced by the criminal justice system. As a result of the targeting of minorities through various efforts waged in the name of the war on drugs and various wars on crime, minorities were disparately prosecuted, convicted, and incarcerated for felonies.
Felony disenfranchisement has had a political impact. It is generally believed that this demographic tends to lean more to the left than to the right politically. Several critical elections, including the 2000 presidential election, are believed to have been effected by the exclusion of ex-offenders from the electoral process. In each of these circumstances, it is alleged that if liberal-leaning ex-offenders had been permitted to vote, then the more conservative candidate would have lost the election. Instead, in each of these critical races, the more conservative candidate prevailed.
Proponents of felony disenfranchisement justify the practice by pointing to tradition, conventional rationales for criminal punishment, and crime prevention. In medieval
England, felony disenfranchisement existed as part of the panoply of disabilities imposed on convicted felons. Felons typically suffered both physical death (incarceration until the imposition of capital punishment) and civil death (the inability to perform civil functions, including the right to vote). Some U.S. states appear to continue felony disenfranchisement merely as a historic practice, although disenfranchisement in early England was of little consequence because most felons were subject to the death penalty. In the United States, however, only murder and treason are subject to the death penalty.
Other proponents of felony disenfranchisement argue that, independent of the legislation’s lineage, disenfranchisement is a justified form of punishment based on either a utilitarian or retributive theory of punishment. Thus, proponents argue that disenfranchisement will deter future criminality and represents the felon’s just deserts for the breach of societal norms. Finally, felony disenfranchisement is supported as a means to protect “ballot purity.”Proponents argue that felony disenfranchisement prevents felons from promoting corrupt agendas through the vote, and that it limits the threat of voter fraud.
Critics of felony disenfranchisement complain that the practice violates traditional penological objectives and the democratic ideal. They maintain that it violates the goals of rehabilitation and the reintegration of ex-offenders into the community and the body politic. In addition, disenfranchisement schemes are not proportional, thereby violating another goal of criminal sentencing schemes. Critics also question whether felony disenfranchisement can be reconciled with the goals of widespread democratic participation and a commitment to universal suffrage.
The breadth and extent of felony disenfranchisement legislation in the United States is out of step with the practices of other civilized countries and international law. Most civilized countries have limited or abolished voting restrictions imposed on ex-offenders. Moreover, international human rights organizations argue that disenfranchisement policies within the United States violate international law. In particular, they insist that the imposition of permanent disability and blanket disability on all incarcerated persons violates Article 25 of the International Covenant of Civil and Political Rights, which requires that restrictions on the right to vote be based on grounds that are “objective and reasonable.”These organizations argue that disenfranchisement within the United States—which denies all incarcerated persons the right to vote, regardless of offense, and denies to some the right to vote for life—is neither objective nor reasonable.
These organizations also urge that disenfranchisement legislation in the United States violates the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which has been ratified by the United States. They insist that the scope and the increasing racial impact of this legislation violates CERD’s command that states eliminate legislation that restricts the right to vote in a racially disparate manner, regardless of the intention of the legislature.
Legal challenges to disenfranchisement legislation premised on race have generally not been successful. Students of the legislation, therefore, advocate the abandonment of such approaches and the adoption of strategies that target legislative action rather than seek judicial invalidation.
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Human Rights Watch, and the Sentencing Project. 1998. “Losing the Vote: The Impact of Felony Disenfranchisement Law in the United States.”Available from http://www.hrw.org/reports98/vote/.
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Magee, Robin K. 1994. “Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men.”Capital University Law Review 23 (1): 151–219.
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Sentencing Project. “Felony Disenfranchisement: A Review of Scholarly Literature.”Available from http://www.sentencingproject.org/pdfs/fvrlitreview.pdf.
Robin K. Magee