Felony Disenfranchisement: A Stain on Democracy
Maggie Hall
230093183
POLS 413
Dr. Michael Murphy
Introduction
Fundamental to the democracy which the United States of America appears to pride itself on is the right to vote. An engrained principle of democracy, enfranchisement- the admittance to citizenship particularly through voting- is permanently altered in some states. Is a government truly democratic if it permanently disenfranchises its citizens? Are those who are disenfranchised less ‘citizen-like’ because of their inability to cast a ballot? In this essay, I will argue that felon disenfranchisement in the United States permanently alters the fundamental principles of citizenship. I will first give a brief outline of the legalities of felony disenfranchisement. Then, I will question its effects on citizenship, as well as what this means for the democratic standing of America. I will discuss the moral issues associated with felony disenfranchisement, as well as race-based discrimination and finally discuss the opinions of those who support felony disenfranchisement. Through this essay I hope to adequately portray that felony disenfranchisement is an undemocratic stain on American society which affects citizenship and social standing of vulnerable members of society, as well as reflects poorly on American democracy as a whole.
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Legalities
Felon disenfranchisement is the inability to vote after conviction of a felony occurring in certain states. Although this seems contrary to anti-discrimination policies prevalent in the American Constitution, the American Supreme Court has established that disenfranchisement is only forbidden if based on “race, ethnicity, sex, failure to pay a poll tax, or age over eighteen. They do not translate into a universal right to vote” (Raskin 2005: 12).
Disenfranchisement is traced back to medieval times when infamous criminals could suffer a ‘civil death’ whereby they essentially become dead in the eyes of the law. The convicted could not participate in any aspect of the legal system including property ownership or involvement in juries (Chin 2012). In America today, a similar ‘civil death’ occurs with felon disenfranchisement; an ex-convict appears to have broken a ‘civil contract’ and in certain states is therefore no longer permitted to participate in civil life. Felonies inhibiting the right to vote can include first time offenses ranging from cheque fraud to murder. It is estimated that “3.9 million Americans, or 1 in 50 adults, had either currently or permanently lost their right to vote as a result of a felony conviction” (Roberts 2004:1292). Because of the operation of American judicial systems, “state law governs removal of the right to vote, even if the conviction is for a federal, rather than a state offence” (FELLNER GET REAL CITATION).
There are nine states which subjugate ex convicts to permanent felon disenfranchisement, three of which- Alabama, Mississippi and Tennessee only after certain offences, and two which disenfranchise after a second offence- Arizona and Nevada. An additional three states disenfranchise ex-convicts for up to five years after certain offences (The Sentencing Project 2012).
Felony Disenfranchisement’s Effect on Citizenship
After committing a felony crime, a person is no less a citizen of America than they were before committing the crime. “Citizens who commit crimes cannot be forced to leave the country or legally declared noncitizens” (MANZA AND UGGEN 2006: 186), so why then is a right that is held so pertinent in the responsibilities of citizenship stripped after an illegal act? Committing a social wrong does not mean that one is any less American, or any less able to participate in legal life.
The Essay on Convicted Felons Should Not Be Allowed to Vote
... Many Americans were not allowed to vote these past elections. ... when it comes to elections. Some believe that felon disenfranchisement laws also have a big racial impact because ... state or federal prison. A felony is a serious crime usually punishable by imprisonment or death. Convicted felons should not be allowed to vote. ...
Additionally, there are many decisions passed through politics about incarceration, punishment, parole, and the like each year. By affecting citizenship through felon disenfranchisement, many states do not permit the people who these decisions would affect be a voice in deciding if they should be passed. The laws and policies relating to ex-convicts will, in some states, never get the opinion of the ex-convict himself. Judith Shklar explains that “disenfranchised Americans…have asked…that citizenship be equally distributed, so that their standing might also be recognized and their interests be defended” (1991: 30).
Here we can see discontinuity; if state governments were to pass legislation on public transportation, for example, those employed or affected by the use of public transportation would have the option to vote for or against that piece of legislation. Ex-convicts do not have that luxery, in that in certain states, they become subject to laws that they were in no way permitted to voice a ballot-related opinion on. The permanently disenfranchised are expected to live in a society and abide by the rules of the society that they have no part in changing. What therefore happens is that “the unincarcerated felon…shares the obligations of the social contract with the non-felon members of society, yet he does not share all of the benefits derived from the contract” (Johnson-Parris 2003: 113).
Felon disenfranchisement has become an increasingly serious matter as incarceration rates soar. Although crime rates have remained relatively stable, the number of those incarcerated has increased as a result of new policies such as mandatory minimum sentencing and three strike laws (FELLNER WHATVER 1998).
Stemen and Rengifo explain that “between 1970 and 2006, state imprisonment rates quadrupled from 87 inmates per 100,000 residents to 445 inmates per 100,000 residents” (2011:174).
They also argue that determinate sentencing, a process which eliminates the option for parole boards to release prisoners before the end of their sentencing date, has been a major transformation in over incarceration as inmates who have served an appropriate amount of time based on good behaviour or ‘rehabilitation’ must remain incarcerated until released at the end of their sentence by the state. This mass incarceration trend that is rolling over America directly corresponds to the disenfranchised. More people become ex-convicts, more people become disenfranchised, and less people have a say in the mass-incarceration boom and over incarceration policies having a direct relation to them.
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American Democracy Questioned
A fundamental truth of modern democracy and a value that Americans hold true is that participation in the electoral system is a voice for the people- one where they can cast a ballot to influence the outcome of their country. Unfortunately however, “the United States is…the only nation that currently disenfranchises large numbers of nonincarcerated felons” (Manza et al. 2004: 276).
As Raskin argues, “our cherished civil beliefs about voting rights are not yet embodied in an affirmative constitutional right” (2005: 12).
This is a total dichotomy of the value of the vote created from years of protests for the universal right to vote in the United States. In the past, those disenfranchised in America have included women, racial minorities, and those who did not own property. Fighting for the right to vote had been a struggle through American history. We see transitional states worldwide that fight against tyranny and for democracy with the same vigour. As Manza and Uggen explain, “in declaring that the right to vote is fundamental [in America]… the court has both explicitly and implicitly held that democracy requires that all citizens have an equal opportunity to influence election outcomes” (2006:186).
If not all citizens have the right to vote, the state is therefore less democratic.
By disenfranchising those who have been convicted of a felony, the state is saying that those who do ‘good’ in society are granted more opinion in politics than those who do ‘bad’. Manza and Uggen argue that “no democratic party today allows ‘good’ citizens more votes than everyone else” (2006: 186).
When a state eliminates the vote of the ex-convicted, they eliminate those who may possibly dissent to certain policies. While some scholars argue that because of voter turnout rates, the disenfranchised population likely could not impose significant political change in the case of elections, in extremely close federal elections such as John F. Kennedy vs. Richard Nixon in 1960 or George W. Bushvs. Al Gore in 2000, the disenfranchised vote may have been the tipping point (Uggen and Manza 2002).
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The right of any citizen of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. ” – The 26th Amendment. (Campus Congress, August 30, 2011). The right to vote guaranteed by the constitution is under attack. Restricted Voter ID legislation is being passed in state after state. These voter ID ...
America’s disenfranchised, if given the opportunity to be politically active, could have made a change.
The Moral Issue
Although the debate on whether incarcerated convicts should have the right to vote remains up for discussion, and will not be elaborated on in this essay, the removal of the right to vote after incarceration seems to me to be morally unjust. Human agency, or the ability to act independently, is permanently wiped away for those who become permanently disenfranchised. They are no longer in control of the policies that affect them and therefore become a malleable member of society, easily affected by policies which they cannot change.
Furthermore, for non-felony convictions and moral wrongs, citizens have the ability to make amends with their wrongs. The same cannot be said for those who are permanently disenfranchised. The lifelong removal of a key aspect of democratic citizenship indicates that there is no chance to become fully restitute. Johnson-Parris describes that “whereas for most citizens the taint of past misdeeds can be erased gradually through redemptive acts, the slate cannot be wiped clean for the permanently disenfranchised” (2003: 110).
An eternal scar on their citizenship, those who have permanently lost the right to vote become a product of America without the opportunity to legally change anything. There is no opportunity to become a full member of society again, even after the ex-convicted debt has been paid. This is an extremely troubling feature of felony disenfranchisement.
A characteristic of felon disenfranchisement which does not seem to line up with the already absurd punishment is that in most cases, the consequence of the removal of the right to vote has no correlation to the crime that has been committed (Fellner and Mauer 1998, Eaton 2006).
This begs the question, what is the point of withdrawing the right to vote for the ex-convicted? If the punishment has no relationship to the crime, what is the benefit of removing the right in the first place? Eaton argues that “in the absence of a clear link to penal objectives, the measure [of disenfranchisement]…rested on a moral judgement that prisoners were unworthy to vote” (2006: 446).
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We can look at a monetary punishment for speeding in a vehicle as a comparison. Paying a fine has nothing to do with the excessive speed at which one happened to be driving, and perhaps if we were to look more closely at the judicial system we could find a more suitable punishment, however once the fine is paid, the debt is repaid to society and the ex-speeder can move on. This is however not the case with felony disenfranchisement. The disenfranchised continues to pay their debt to society, long after their court-mandated punishment, without the opportunity to regain full access to the legalities of the state.
A Racial Aspect
Although I will not try to prove in this paper that felony disenfranchisement is a direct cause of state governments’ attempts to quash their minority populations’ vote, it must be acknowledged that state prisons are highly populated with racial minorities, who in some states then go onto the be permanently disenfranchised. This continues the top-down approach to politics, whereby those who create and pass the rules are those who are ‘more American’ and more ‘law-abiding’ and therefore in better social standing than over incarcerated, minority citizens. 13% of adult black men, according to Roberts, are either permanently or temporarily disenfranchised as a result of a federal conviction (2004: 1292).
As discussed earlier, three strike laws and the war on drugs which have been sweeping America directly affect prison populations- specifically the populations of racial minorities. More African Americans are incarcerated, so more are disenfranchised, and less have a say in public policies through voting. Hench argues explicitly that disenfranchisement laws are used to target minority communities where they are locked into a perpetual cycle of living in a society which they cannot change (1998).
While this paper does not argue the point to that extreme, it does however acknowledge the validity in the cyclical argument. Minority races, especially African Americans because of their extreme over incarceration, become trapped in an American fallacy where a large portion of this population is denied legal participation in society. This is especially a problem for minorities, who already have a more difficult time in balancing cultural and religious priorities with quasi secular American society.
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The Voice of those who Approve
There are of course two sides to every story, and in this section of the essay, I will attempt to display my understanding for those who support felon disenfranchisement. There is a clash here between two ideas; the desire to maintain political and social order, and the desire to extend civil rights and liberties to all (Manza et al. 2004).
Felon disenfranchisement unfortunately holds greater value to the maintenance of a sort of political and social order and can be explained with a few common theories.
The most prominent validation for permanently disenfranchising the ex-convicted is the ‘purity of the ballot box’. This is a claim that ex-felons have a history of breaking the law and cannot be trusted to vote in a way which obeys the law. It is argues that the “felon is more likely to violate election laws as well” (Johnson-Parris 2003: 113) as the laws that they have already violated to make them an ex-convict. Those who commit to this theory would argue that there is no chance of changing once someone has commited a felony and therefore cannot be permitted to engage in even the most simple of legal tasks (ie. marking and dropping off a ballot) without breaking the law. Unfortunately for those who obey this theory, it is decidedly “over-inclusive and unfounded” (Johnson-Parris 2003: 192).
Another, earlier positive validation of permanent disenfranchisement comes from the history of its origins which was briefly discussed earlier: civil death. As previously mentioned, in Medieval Europe infamous offenders suffered civil death, meaning that they were no longer permitted the right to own property, have a will, or participate in any legal functions. They were essentially dead in the eyes of the law (Chin 2012).
Those who subscribe to this justification of felon disenfranchisement would tend to accept the notion that the ex-felon broke a social contract and therefore gives up his right to participate in civil society.
There is however, a more moderate version of acceptance of felon disenfranchisement. An in-between acceptance for some depends on social values; depending on the severity and nature of the crime should determine if disenfranchisement should be permitted and if so, for how long. In a study conducted by Manza, Brooks, and Uggen, they found that social perception of felon disenfranchisement changed when the crime was a minor felony such as cheque fraud, as opposed to sexual offences which garnered a higher percentage of those in favour of disenfranchisement (2004: 282).
Conclusion
Works Cited
Chin, Gabriel. “The New Civil Death: Rethinking Punishment in the Era of Mass Incarceration.” University of Pennsylvania Law Review. 160. no. 308 (2012): 1789-1833.
Eaton, Susan. “Electing the Electorate: The Problem of Prisoner Disenfranchisement.” The Modern Law Review. 69. no. 3 (2006): 443-452.
Fellner, Jamie, and Marc Maurer. The Sentencing Project, “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States.” Last modified 1998. Accessed October 15, 2012.
Johnson-Parris, Afi. “Felon Disenfranchisement: The Unconscionable Social Contract Breached.” Virginia Law Review. 89. no. 1 (2003): 109-138.
Manza, Jeff, and Christopher Uggen. Locked Out: Felon Disenfranchisement and American Democracy. New York, New York: Oxford University Press, 2006.
Manza, Jeff, Clem Brooks, and Christopher Uggen. “Public Attitudes Toward Felon Disenfranchisement in the United States.” Public Opinion Quarterly. 48. no. 4 (1998).
Raskin, Jamin. “Lawful Disenfranchisement: America’s Structural Democracy Deficit.” Human Rights. 32. no. 2 (2005): 12-16.
Roberts, Dorothy. “The Social and Moral Cost of Mass Incarceration in African American Communities.”Stanford Law Review. 56. no. 5 (2004): 1271-1305.
Shklar, Judith. American Citizenship: The Quest for Inclusion. Cambridge, Massachusetts: Harvard University Press, 1991.
Stemen, Don and Andres Rengifo. “Policies and Imprisonment: The Impact of Structured Sentencing and Determinate Sentencing on State Incarceration Rates, 1978-2004.” Justice Quarterly. 28. no.1 (2011): 174-201.
The Sentencing Project, “Felony Disenfranchisement Laws in the United States.” Last modified 2012. Accessed October 16, 2012.
Uggen, Christopher, and Jeff Manza. “Democratic Contradiction? Political Consequences of Felon Disenfranchisement in the United States.” American Sociological Review. 67. no. 6 (2002): 777-803.
