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January 01, 2004

Felon Disenfranchisement: A Policy Whose Time Has Passed?

by Marc Mauer

Reverend Tommy Waites of Montgomery, Alabama, is considered one of his city's exemplary citizens. A longtime pastor with a particular focus on prison ministry, he was recently named Citizen of the Year by the Montgomery Bar Association. But Reverend Waites was not always held in such high esteem. Originally sentenced to a life prison term, he served eight years in Alabama prisons before earning his release. As a result of his service to the community, he eventually received a pardon from the state, a time-consuming and difficult process to negotiate. He now can vote with fellow citizens and claim his other civil rights.

Until last year, the story of Reverend Waites was the exception to the rule. For more than a century, all persons convicted of a felony in Alabama lost their voting rights for life, with only a relative handful able to gain pardons. But as a result of legislation signed into law in 2003 by Governor Bob Riley, most individuals who have completed their sentence are now eligible to apply to have their voting rights restored.

By enacting this legislation, Alabama joined eight other states that since 1996 have adopted reforms of their disenfranchisement laws. The reforms have enfranchised an estimated half-million potential voters and in many respects represent one of the emerging frontiers of the modern-day civil rights movement.

American disenfranchisement policies are extremely broad and can be traced back to the nation's founding, when the Founders carried over the concept of "civil death"-the deprivation of all rights, dating from medieval times-to people convicted of a felony. When the new nation was formed as an experiment in democracy, it was in fact a very limited experiment-a group of wealthy white males granting themselves the right to vote. Among the excluded groups in the population were women, African Americans, illiterates, poor people, and felons. Current estimates suggest that only 6 percent of the population at that time was granted the right to vote. During the ensuing 200 years, the vote has been extended to all the excluded groups but felons, and we now look back on those exclusionary past practices with a great deal of national embarrassment.

Rooted in Racism

Disenfranchisement policies have served various political purposes, most notably racial exclusion. In the post-Reconstruction period, coincident with the advent of poll taxes and literacy requirements, legislators in a number of southern states tailored their disenfranchisement statutes with the specific intent of excluding the newly freed black voters. They accomplished this by tying the loss of voting rights to crimes alleged to be committed primarily by blacks while excluding offenses held to be committed by whites. Such laws were in place for one hundred years before being struck down.

Today, forty-eight states and the District of Columbia prohibit felons in prison from voting, and thirty-three states ban people on probation and/or parole as well. In thirteen states a felony offense can result in the loss of voting rights even after the sentence has been completed, and often for life. Although these laws have been in place for many years, their impact is now greater than at any point in U.S. history, given the sixfold increase in the number of people entering the criminal justice system during the past three decades. Overall, some four million Americans-2 percent of the adult population-cannot vote as a result of a felony conviction; the rate for African American males is a staggering 13 percent.

Unpaid Debt

Regarding individuals who complete their sentence, it is difficult to develop a compelling argument for the denial of voting rights. Americans long have professed that once you "pay your debt to society," you are free to rejoin the community. But a felony conviction may continue to deny these rights of citizenship decades after a sentence has been completed, even for a one-time, nonviolent offense. (Regrettably, policymakers in recent years enacted a series of collateral consequences of conviction, many tied specifically to drug offenses, that also extend after sentence. These include bans on receiving welfare assistance, living in public housing, and obtaining financial aid for higher education.)

But serious questions can be raised as well regarding the loss of fundamental rights for people currently serving a felony sentence, whether in prison or on probation or parole. Our legal system generally makes a distinction between punishment-the loss of liberty whether in prison or on probation-and the loss of rights. The only exceptions generally conceded by law and policy are those exercises of speech that might conflict with public safety concerns.

If we think of voting more broadly, as a fundamental expression of speech, then disenfranchisement becomes an even greater challenge for a democratic society. Suppose, for example, a legislator proposed a bill to make it unlawful for a probationer to write a letter to the editor or to participate in a protest rally. Surely few policymakers or citizens would find this an appropriate consequence of a conviction. Yet in the twenty-nine states that currently prohibit probationers from voting, such restrictions on political expression are firmly in place.

The traditional goals of sentencing also leave little justification for disenfranchisement and most other collateral consequences of conviction. Other than serving a retributive function, disenfranchisement certainly does not meet the goals of incapacitation or deterrence. Individuals who are not already deterred from crime by the threat of incarceration are unlikely to be swayed by the prospect of losing their right to vote.

Placing a character test on voting eligibility also is reminiscent of past practices that run counter to modern notions of democratic procedure. Once we begin to impose character requirements, voting slips back from being a right for all Americans to a privilege granted by the powerful.

The racial impact of disenfranchisement policies is sometimes justified as an inevitable if unfortunate aspect of a race-neutral criminal justice system: if members of a particular racial or ethnic group are more involved in crime, the consequent disproportionate loss of voting rights is merely a result of their activity. Such an argument, though, ignores the compelling evidence of discriminatory racial dynamics in the criminal justice system-racial profiling by law enforcement agencies, the racially disparate prosecution of the war on drugs, and glaring inequities in adequacy of counsel as a function of both race and class.

Fostering Involvement

In a more positive vein, the restoration of voting rights can be seen as being in harmony with the rehabilitative goal of sentencing. If an objective of sentencing is to encourage offenders to become less antisocial, then it is in society's interest to engage offenders in productive relationships with the community. Voting is clearly one means of doing so.

Such a rationale is employed by the many nations (and the states of Maine and Vermont) that do not relate voting rights to criminal punishment and permit even prisoners to vote. By the standards of most democratic nations, American disenfranchisement policies are extreme, as is our excessive use of imprisonment. No other democratic nation disenfranchises former offenders for life; some countries deny voting rights to citizens after they have completed a prison sentence, but this generally is for a limited period of time and for specific offenses. During the past decade, constitutional courts in Canada, Israel, and South Africa have affirmed the fundamental right of all citizens, including prisoners, to be part of the electorate. The Israeli case is particularly intriguing because it resulted from a challenge to the voting rights of Yigal Amir, the man convicted of killing former Prime Minister Yitzhak Rabin.

In recent years renewed attention has been drawn to the issue of felony disenfranchisement. This was spurred by the publication of a 1998 report by Human Rights Watch and The Sentencing Project that provided the first state-based estimates of the impact of disenfranchisement. LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES. On its heels came the historic 2000 presidential election results in Florida. Florida is among the most restrictive states with regard to disenfranchisement; on that election day, an estimated 600,000 former offenders were legally ineligible to vote. Clearly, the outcome of a national election may have been shaped by these policies.

Challenges to disenfranchisement policies have emerged at several levels. Key litigation includes the Brennan Center's challenge to Florida's disenfranchisement law based on its racist origins and racial impact. Johnson v. Bush, 214 F. Supp. 2d 1333 (Fla. Dist. Ct. App. 2002). The federal district court upheld the law, and an appeal is now pending in the Eleventh Circuit. Although disenfranchisement laws in New York State are less restrictive than some-prisoners and parolees are disenfranchised-litigants led by the NAACP Legal Defense and Educational Fund are challenging the statute in Hayden v. Pataki, Civ. No. 00-8586 (S.D.N.Y.). The plaintiffs in New York are also raising an argument of voter dilution because large-scale disenfranchisement of minority voters causes communities of color to lose political saliency even though most residents of the communities have not been convicted of a felony offense.

In recent years a broad base of advocates in a number of states has achieved success in enacting legislation to scale back or repeal various aspects of disenfranchisement policy. Much of this activity centers on the states with the most extreme policies: those that disenfranchise various categories of felons even after they have completed their sentences. Since 2000, legislation to substantially expand voting rights to many former offenders has been signed into law in Delaware, Maryland, Nevada, and New Mexico. Connecticut legislators enacted a bill to expand voting rights to felons currently on probation, and several other states have eased the restoration process by which former offenders can apply to regain their rights. Notably, these various bills have been signed into law by both Democratic and Republican governors.

National attention to this issue is also growing among policymakers and within the legal community. Following the presidential election results from Florida, the National Commission on Federal Election Reform chaired by former Presidents Ford and Carter unanimously recommended that states not prohibit voting by people who have completed their sentences. And in 2003 the ABA approved a new set of standards relating to the collateral consequences of a felony conviction that oppose any restrictions on voting rights for non-incarcerated felons.

Interest in disenfranchisement has led to increased activity within the civil rights community as well. The National Campaign to Restore Voting Rights, a collaborative of eight leading national civil rights and civil liberties organizations, is engaged in a multi-year project to support education and advocacy work at both state and national levels.

Disenfranchisement is but one of the many consequences of a felony conviction in most states. Policymakers and practitioners are becoming increasingly aware of the broad range of effects such policies have on the lives and prospects of offenders returning to the community. A reconsideration of disenfranchisement policies forces us to focus on both these practical issues and the fundamental meaning of a democratic society in the modern era. That reconsideration is long overdue.

Marc Mauer

Marc Mauer is the assistant director of The Sentencing Project. His 1999 book Race to Incarcerate was a semifinalist for the Robert F. Kennedy Book Award. He also is the co-editor of Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2002).