Combating Racism – Felon Disenfranchisement

Today, felon disenfranchisement laws continue to impose on the civil rights of felons – America’s most disadvantaged group.

To be ‘franchised’ is to have the right to vote. This basic civil right is central to any democratic nation and essential to the fundamental principles of democracy. It’s how we – the people – exercise our power through a system of fairly electing our representatives.

A felon, on the other hand, is someone who is found guilty of committing a crime – violent or not – and punished by being imprisoned for over a year. So, put together, felon disenfranchisement is the exclusion from voting of people who have currently or previously been convicted of a felony. We call these ‘laws that prohibit Americans from voting’ or ‘revoked civil rights’.

The United States has a higher proportion of its population in prison than any other Western nation and more than Russia or China. The dramatic rise in the rate of incarceration in the United States, a 500% increase from the 1970’s to the 1990’s, has vastly increased the number of people disenfranchised because of felon provisions.

Even though, over the past 25 years, half of the U.S. states have changed their laws to allow more convicted felons to enter the voting pool, approximately 6.1 million Americans remain disenfranchised, which represents 2.5% of the voting-age population. This is a sharp increase from the 1.2 million people affected by felony disenfranchisement in 1976. Given the increased prison populations and the racial inequities in the justice system, the effects of disenfranchisement have been most disadvantageous for minority and poor communities. When looking at race-specific data, it is clear that disparities in the criminal justice system are linked to disparities in political representation.

Felony disenfranchisement policies in the United States impact people of color disproportionately. Racial minorities and the poor are significantly overrepresented in the U.S. criminal justice system. Compared to the rest of the voting age population, Black Americans are four times more likely to lose their voting rights. Approximately 2.2 million Black citizens (8 percent of Black adults) have been disenfranchised compared to under 2 percent of non-Black American citizens. This amounts to one in 13 Blacks being banned from voting, and in Florida, Kentucky and Virginia, this ratio has been as high as one in five.

Disparities in disenfranchisement also extend across socio-economic lines. About thirty states restore voting rights on the condition of the individual's ability to pay legal debts. Incarceration already negatively impacts a felon’s ability to find work, thus creating a vicious cycle of being unable to pay their debts and resultantly also lose their ability to vote.

Laws vary across states regarding the permanence of the disenfranchisement and often depend on the type of crime or period of incarceration.

Primary classifications of disenfranchisement include:

  1. No disenfranchisement. Only the District of Columbia, Maine, and Vermont have never revoked the rights of felons to vote, even when incarcerated (via absentee ballot).
  2. Ends after release – In 21 states, disenfranchisement ends after incarceration is complete.
  3. Ends after parole – Only in Connecticut and Louisiana does disenfranchisement end after incarceration and parole.
  4. Ends after probation – Sixteen states require not only that incarceration (and parole if any) be complete but also that any probation sentence (often an alternative to incarceration).
  5. Circumstantial – Nine states have laws that relate disenfranchisement to the details of the crime. In these states, felons may lose suffrage permanently. For example, in Florida, a convicted person permanently loses suffrage if the crime was murder or any sexual offense.

ProCon.org. (2021, April 12). State Felon Voting Laws & Policies. Retrieved from https://felonvoting.procon.org/state-felon-voting-laws/

In this newsletter I present various perspectives on felon disenfranchisement and arguments for and against the issue:

SHOULD FELONS BE ALLOWED TO VOTE?

Judgment

The proponents of allowing felons to have the right to vote argue that just as ex-convicts are allowed to marry, have jobs, reproduce, invest in property, and own assets, so, too, should they have the right to vote. A lapse in judgment at one point in time for whatever reason does not mean permanent poor judgment. Just as never being incarcerated does not necessarily mean an individual possesses good judgment, being incarcerated does not mean someone possesses permanent bad judgment. Proponents argue that someone who has completed incarceration is worthy of being trusted and that, given that trust, the individual has the ability to change and reform.

Others argue, however, that convicted felons cannot be trusted to help choose our leaders. Opponents argue that “once a felon, always a felon.” They believe that just like others in society who cannot be trusted for their judgment, such as children or the mentally incompetent, ex-felons are not trustworthy.

Civil rights

Many groups believe that prisoners should be allowed to vote during their incarceration period. Although prisoners are stripped of many privileges, some assert that they should not lose all civil rights. They ultimately are part of society, albeit secluded. They ultimately will need to be integrated back into society.

Giving felons the right to vote equips them with a sense of ownership towards the state and society. Many believe that people who have committed crimes have paid the price, and should have the right to vote. Even if in jail, they're paying their price to society, but that should not take away their inherent, fundamental American right to participate in our democracy.

Constitutionality/A right vs. a privilege

Proponents of suffrage for ex-felons claim that the right to vote is universal and fundamental to our nation's democracy and that restrictions on suffrage strike at the heart of democracy. While “the punishment needs to fit the crime,” any form of lifetime disenfranchisement seems to stretch the punishment too far for all but the most serious crimes.

Is disenfranchisement unconstitutional? To date, courts have almost always dismissed challenges to ex-felon re-enfranchisement based on the Eighth Amendment to our Constitution, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.

However, opponents argue that voting is not a right but a privilege. According to the 14th Amendment, felon voting is a state prerogative, allowing states to disenfranchise citizens guilty of “participation in rebellion, or other crime.” Ambra Nykol, a guest editorial columnist for The Seattle Post-Intelligencer, argued that the United States never considered voting to be a right even in its earliest days when the privilege to vote was extended only to landowners and later only to men until the suffragette movement.

Political considerations

A political driver in this conversation is the perception that ex-felons are inclined to vote Democratic, hence conservative groups have tended to oppose voting-rights initiatives. Because Black Americans are overwhelmingly Democratic Party voters, felon disenfranchisement erodes the Democratic voting base by reducing the number of eligible Black voters. And the White felon population is principally composed of poor or working-class offenders who are also likely to vote Democratic.

Back in 2003, Alabama GOP chair Marty Connors explained his party's position bluntly: "As frank as I can be, we're opposed to it because felons don't vote Republican."

According to a study by renowned sociologists Christopher Uggen and Jeff Manza in the American Sociological Review, as many as seven senatorial elections since 1978 and at least one presidential election (2000) would have had different outcomes without felon disenfranchisement laws. “As the number of disenfranchised felons expands, the electorate contracts....the contracted electorate now produces different political outcomes than a fully enfranchised one....”

Their entire study can be found here.

Prisoners’ votes

Another debate on allowing prisoners to vote centers on assumptions of their biases. Prisoners convicted for a certain crime will likely support laws that favor their release. For example, sexual offenders would be unlikely to vote for parties supporting stricter punishments for sexual offenses like rape.

Opponents of suffrage for felons argue that people convicted of a crime should not be able to decide the punishments they should receive. Furthermore, those who oppose voting rights for prisoners believe that citizens who do not respect the laws should not have the right to have a say in making them.

Given the oppression prisoners face, some doubt that their vote would be completely free of influence. Prisoners are often subject to dangerous conditions and many injustices in prison. They are often victimized and sometimes killed with no repercussions for those who administer punishment. Anger associated with their punishment could impact their vote.

This brings to question the credibility of the vote as well. Even though proponents believe that prisoners may feel like they are part of the larger society if allowed to vote, opponents argue that prisoners may not always have the community's best interests at heart.

Alternatively, giving prisoners the right to vote is seen as one way to end their dehumanization. Giving them the right to vote allows their perspectives to be included in the electoral process and allows their concerns about prison life to reach lawmakers, potentially making prisons more humane.

Disenfranchisement is a part of the punishment, not its result

Some maintain that the right to vote when incarcerated is a part of the punishment felons receive when incarcerated. Breaking the law rips them of their right to vote as a punishment, just like other rights. A custodial sentence has always led to the loss of freedom; the right to vote is no different. The right to vote is almost like an incentive to avoid criminal activity – an incentive that needs to remain present.

However, experts like Alan Slater, a co-author of the National Center for State Courts’ “Report on Trends in State Courts” and “Future Trends in State Courts,” note that restoring voting rights can act as an incentive for ex-felons to continue participating as contributing citizens and avoid criminal activity.

His claim has also been challenged: if the right to vote was all it took to allow citizens to be participating members of society, this would be enough incentive to avoid crime in the first place.

Restoring voting rights

There is also much debate about when rights should be restored after a sentence is served. While some states like Virginia favor the automatic restoration of the right to vote, other state lawmakers believe that prisoners should prove they will abide by the law before getting this right reinstated.

People who support automatically restoring voting rights acknowledge that after incarceration, felons are already subject to a number of exclusions: they are often ineligible for federal grants for education (e.g., Pell Grants), they have restricted access to social programs, they face sharp disadvantages in the labor market, and they must live with the social stigma associated with a felony conviction. Restricted access to the ballot box is but a piece of a larger pattern of social exclusion for America’s vast correctional population. Lacking opportunities to rebuild their lives and lacking the power to change public policy through voting is unfair.

Many assert that, as soon as someone has completed their sentence, the individual deserves a second chance. Automatic restoration of voting rights can restore the felon’s belief in the democratic system. Revoking their rights even after they have completed their sentence can have a backlash in terms of higher rates of repeated offenses by ex-felons out of anger and decreased respect for the law.

Opponents claim that, since approximately two-thirds of released prisoners are re-arrested, and more than half are re-incarcerated within three years of release from prison, immediately restoring the right to vote may do more harm than good. They maintain that individuals who are not willing to follow the law should not have a say in how it should be written. Probation periods after release would allow courts and probation officers to assess the intentions and mental capacities of the ex-felons.

Restitution

There is also a large debate about whether ex-felons should be allowed to vote before they have paid fines and made restitution. Expecting ex-felons who have been unemployed to pay their fines and repay fees before getting the right to vote is argued to be unconstitutional and unjust. The right to vote should be indifferent to one's financial status and access to resources. It is argued that such a system disadvantages the marginalized even further.

Additionally, there is no hard evidence that withholding people's right to vote will motivate them to pay their fines. If the purpose is repayment of court fees and fines, more focus needs to be put on reducing barriers to employment, and increasing skills-based education or formal education when imprisoned so felons can more quickly be incorporated back into the society and economy. Requiring restitution also disproportionately impacts people of color and continues the vicious cycle of poverty.

Lawmakers in states such as Washington maintain that, even though they support reinstating the right to vote after a sentence is completed, this should not be based on only sentence time. Court fees and fines are all part of the sentence and the issue should be viewed in its entirety rather than separating various sentencing aspects. The so-called debt to society is only paid entirely when the sentence time and all associated fees are paid in full. Requiring restitution is another way of ensuring that long, costly prison sentences are paid by prisoners, offsetting the tax investments of other citizens.

The social contract theory

The social contract theory is another concept in the felon disenfranchisement debate. The social contract theory holds that persons' moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live.

Supporters of the social contract theory believe that, since felons are in breach of the social contract, their ability to vote should also be breached. When a crime is committed, it is not only committed against a person but against the entire society.

However, opponents of this theory argue that the very foundation of the social contract theory is based on both parties' freedom to share an active voice in negotiating that contract through voting. Even though felons breach the original contract by committing a crime, they re-enter a new one upon release.

When stripped of the right to vote, the contract becomes invalid since the ex-felon is a silent party in ongoing contract negotiations. If one is held in breach of the contract forever after committing a crime, the ex-felon should not be held to the other clauses of peaceful co-existence after returning from prison—which is not the case. The social contract cannot cherry pick which clauses it holds citizens accountable to, which is why many people oppose the use of the social contract theory to justify felon disenfranchisement.

Ripple effects

Studies have also found that felony disenfranchisement leads to poorer health outcomes since felons lose their ability to vote for beneficial health policies and are disadvantaged in health resource allocation. This contributes to a more difficult journey of reintegration into society and further isolation and segregation of ex-felons.

Many prisoners are counted in the census based on where they are incarcerated rather than where they are registered to vote. This leads to some urban areas, where these prisoners lived before incarceration, losing the voting population while other areas gain a non-voting population, ultimately leading to a structural disparity.

Furthermore, because of the geographic concentration of disenfranchised ex-felons in urban areas, it is likely that such impact is even more pronounced in local or district-level elections such as House, state legislatures, and mayoral races.

THE DEBATE RAGES

The debate about suffrage is part of the larger societal debate about how to treat felons and ex-felons. Until the mid-1970s, rehabilitation was a key part of U.S. prison policy. Prisoners were encouraged to develop occupational skills and to resolve psychological problems--such as substance abuse or aggression--that might interfere with their reintegration into society. Indeed, many inmates received court sentences that mandated treatment for such problems.

Since then, however, rehabilitation has taken a back seat to a "get tough on crime" approach that sees punishment as prison's main function. This approach has created an explosive growth in the prison population, while having at most a negligible to modest effect on crime rates.

In an article entitled, “The Future of Restoring Voting Rights for Ex-Felons: The Surprising Facts | Trends,” Alan Carlson wrote that “If enough Americans believe in reducing the impact of past systemic racism in the justice system, then there will be a trend toward restoring voting rights. When someone has served their time and complied with all sentencing terms, then society needs to accept them back and consider them rehabilitated, at least as to voting.”

Continuing to prevent a person from being able to vote when they have “done their time” really says they have not yet completed their sentence and makes them less committed to a society that “won’t let go.”

We shouldn’t be so quick to write off ex-felons who have completed their requirements by law and have become contributing members of society. What side of the debate are you on?

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