Felon Voting Disenfranchisement
A Policy Whose Time Has Passed?
by Marc Mauer
RESIST newsletter, April
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 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
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 100
years before being struck down.
Today, 48 states and the District of Columbia
prohibit felons in prison from voting, and 33 states ban people
on probation and/or parole as well. In 13 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 US history, given the six fold increase in the
number of people entering the criminal justice system during the
past three decades. Overall, some four million Americans-two 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.
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
29 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 continued from page six 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.
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 Felonly 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
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. 2dl 333 (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-only 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
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
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
American Bar Association 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 is the assistant director of
The Sentencing Project. He is author of Race to Incarcerate (1999)
and co-editor of Invisible Punishment: The Collateral Consequences
of Mass Imprisonment (2002). This article is reprinted with the
author s permission and originally appeared in Human Rights (Volume
31, No. 1, Winter 2004) by the American Bar Association. For more
information, contact The Sentencing Project, 514 Tenth Street,
NW, Suite 1000, Washington DC 20004; www.sentencingproject.org.
Reforming the Electoral Process