Felon Disenfranchisement
This 2016 election year was one for the books. Historic moments occurred with the two major political party nominees being far from what the US has had as presidential candidates in the past. Although it would seem this would draw monumental crowds to the polls, it did not. However, while many chose not to exercise their right to vote, there was another group who did not have the luxury of that choice. Over 6 million people were unable to vote in this past election due to felon disenfranchisement. Felon (or criminal) disenfranchisement is the practice of disqualifying those convicted of felonies from participating in elections and remains a prevalent state practice (Zetlin-Jones, 2006). Different states have different measures regarding this practice, but its use has greatly hindered voting rights for citizens, particularly African Americans.
The importance of universal suffrage has been made apparent through multiple
amendments to the US Constitution. Some instant questions that come to mind with the use of felon disenfranchisement might be how did this practice evolve or why is it legal? To have a better understanding of this issue, this paper will discuss the background of this practice, reasons for its use today, and its effect on voters. Upon conclusion, it will be clear that felon
disenfranchisement has been most effective in decreasing the voting population in the African
American community.
The idea of civil exile has been around for centuries. The ancient Greek called this atima, or dishonor – punishing those who committed serious crimes by prohibiting them from
participating meaningfully in public life (Hamilton-Smith & Vogel, 2012). While more extensive than today’s practice, those subjected to atima were prohibited in petitioning their government, voting, holding office, fighting in the army, or receiving any sort of welfare-type public assistance, among other things (Hamilton-Smith & Vogel, 2012). Medieval Germany had a practice similar to Greece and England adopted a comparable method of dealing with those who committed crimes, differing by having multiple levels of punishment. What was called attainder meant those convicted of certain crimes could face forfeiture of property, corruption of blood (which meant he would be prohibited to pass property to heirs through inheritance), or the loss of civil rights (Hamilton-Smith & Vogel, 2012). As a new country, America took after Europe’s model, eventually focusing more on the loss of civil rights, otherwise known as civil death. In the early days of the US, this meant that criminals could permanently lose the right to vote, the right to own property, or the ability to enter into any legal contracts (Sullivan, 2016).
The use of civil death varied among each state. Some states took rights away from felons on a temporary basis and others made the action permanent. However, after the Civil War, disenfranchisement became much more common as a way to keep African Americans from voting. With the passing of the Fourteenth and Fifteenth Amendments, felon disenfranchisement became the most effective method of suppressing the African American vote (“Why Felons Can't Vote”, 2012). This was possible, because obscure language in the Fourteenth Amendment allows for disenfranchisement of those guilty of “rebellion, or other crime”; while this was intended for serious crimes, it has been left up to the state’s discretion (“Why Felons Can't Vote”, 2012). After 1890, many states began ratifying disenfranchisement statutes and constitutional provisions that listed crimes in which African Americans were most often prosecuted for (such as burglary, theft, perjury, and arson) as disqualifying offenses (Hamilton-Smith & Vogel, 2012). Some have argued that the Fifteenth Amendment, which guaranteed the voting rights of black men, implicitly repealed the disenfranchisement provisions of the Fourteenth Amendment, but in 1974, the Supreme Court ruled that the amendment contained an “affirmative sanction” on criminal disenfranchisement, thus allowing the practice to continue (Watson, 2016).
Today, the US remains one of the world’s strictest countries when it comes to denying
citizens the right to vote if they have been convicted of a crime. Only two states, Maine and
Vermont, do not restrict voting rights, allowing people to vote from prison. Thirty states deny
voting rights to those on felony probation, thirty-four deny those on parole, and in the most
extreme cases, twelve states deny voting rights to all or some of the individuals who have
successfully fulfilled their prison, parole, or probation sentences (Uggen, Larson, & Shannon,
2016). In cases like Florida, felon disenfranchisement laws have systematically excluded
communities from voting, thus having an effect on elections. More than 10 percent of the voting aged population and 23 percent of African Americans cannot vote in Florida, which is nearly the majority of Black males living in the state (Phillips & Deckard, 2016; Sullivan, 2016).
One of the major concerns of strict voter disenfranchisement laws is the issue of
inequality that appears in the legal and justice system. The chances of being convicted of a crime or felony are not evenly distributed across the US due torace, gender, and class being a large predictor of the chances of arrest, the type of conviction, and the amount of jail time (Phillips & Deckard, 2016). This leaves some of the most vulnerable individuals or communities, particularly of lower-class and those of color, more likely to lose their right to vote, as well as their representation in our democratic system. In a 2002 study, it was determined that the result of seven Senate races across the US in 2000, would have different outcomes if those with felony convictions had been allowed to vote; so to would the Presidential Election between George Bush and Al Gore had Floridian former felons been eligible (Khalek, 2012).
Despite inequality in the legal and justice systems, other arguments against
disenfranchisement are that strict laws further isolate and segregate ex-felons from re-entering society by denying them the ability to participate in the political process, they are
counterproductive to rehabilitation ideals, and that many who are not able to vote are still
deemed capable of working and paying taxes, yet they are not entitled to the same representation as non-felon citizens (Hamilton-Smith & Vogel, 2012; Sullivan 2016). More than 70 percent of those not able to vote are no longer in prison and 51 percent, or just over three million people, have completed all their sentencing requirements, to include probation or parole (Uggen, Larson, & Shannon, 2016)It is difficult to see why felon disenfranchisement practices are still in place, if not to systematically hinder voter turn-out, particularly for a group that is likely to vote for the Democratic Party.
Those in favor of the ancient practices of civil death cite arguments that seem
contradictory to the rehabilitation process, which jails are expected to perpetuate. In an article by Jerry Shaw (2016), he lists six reasons why felons should not be able to vote: 1) Ex-felons have demonstrated dishonesty and irresponsibility, 2) They should have consequences for violating the rights of others, 3) Standards involving trustworthiness exempt others from voting (children, mentally unstable), 4) The 14th Amendment allows for it, 5) Ex-felons should have to prove they are able to abide by laws, and 6) Crimes committed include actions against the entire society. Many of these arguments are retaliatory in nature and overlook much of the research describing the benefits of allowing ex-felons to participate in civil society. The article does discuss some of the known benefits, stating “…Although restoration of voting rights helps offenders return to the society, it should be done carefully,” (Shaw, 2016). However, it is difficult to prove that those who have not been convicted of a crime have any moral superiority or are more honest and trustworthy because those who are White or wealthy are less likely to be convicted of the same crimes as those who are not.
To conclude, the practice of civil death or felon disenfranchisement is outdated. It was
established in ancient Greece and was largely used in the US to keep former African American slaves from being able to vote. Despite hundreds of years and constitutional changes, this practice has still been effective in keeping African Americans from voting; 1 in 13 African Americans have permanently lost their voting rights (The Sentencing Project, 2016). In four southern states -Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) – more than one in five African Americans is disenfranchised (Uggen, Larson, & Shannon, 2016). This amount is unacceptable and has damaging effects to many lower-class, or Black communities, who have less of a voice in the democratic process. “If someone is deemed capable of working, paying taxes and generally participating in civil society, he or she deserves the right to decide how he or she should be governed,” (Sullivan, 2016). Without discernable evidence that ending felon disenfranchisement would be harmful to states, its time the practice is adapted or abolished.
References
Hamilton-Smith, G. P., & Vogel, M. (2012). The violence of voicelessness: the impact of
felony disenfranchisement on recidivism. Berkeley La Raza Law Journal, 22407-431.
Khalek, R. (2012). Who can’t vote this November?. Nation, 295(13), 5
Phillips, A., & Deckard, N. (2016). Felon Disenfranchisement Laws and the Feedback Loop of
Political Exclusion: the Case of Florida. Journal Of African American Studies, 20(1), 1-
18. doi:10.1007/s12111-015-9314-0
The Sentencing Project. (2016). Retrieved from
http://www.sentencingproject.org/issues/felony-disenfranchisement/
Shaw, J. (2015, April 15). Voting Rights: 6 Reasons Ex-Felons Shouldn't Vote. Retrieved
From
http://www.newsmax.com/FastFeatures/felons-voting-rights/2015/04/15/id/638743/
Sullivan, R. D. (2016). Ending Civil Death. America, 215(11), 18.
Uggen, C., Larson, R., & Shannon, S. (2016). 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement. Retrieved from
http://www.sentencingproject.org/issues/felony-disenfranchisement/
Watson, J. E. (2016). Scholars: Participation Key after Restoration of Ex-felons' Voting
Rights.Diverse: Issues In Higher Education, 33(11), 9.
Why Felons Can't Vote. (2012). Wilson Quarterly, 36(3), 61-62.
Zetlin-Jones, D. (2006). Right to remain silent?: What the voting rights act can and should
say about felony disenfranchisement. Boston College Law Review, 47(2), 411-454.
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