felon disenfranchisement

So many important issues in America life only exist "under the radar"--they are known only to the professionals in a particular field. Then, on some occasions, an issue will break into the open and become not just an issue for professionals in the field but for all of us. Spousal abuse, for example, started to be seen as a societal issue in the 1970s and drunk driving rose to national attention in the 1980s. The problem of felon disenfranchisement--the taking away of voting rights of incarcerated felons either for the time of their incarceration or, in some instances, for the rest of their lives, is an issue that will, I think, rise in the national consciousness in the coming years. The purpose of this essay is to explain the issue and its history, and to say where I think the issue will go in the future.

The Facts Today

Forty-eight states (all except ME and VT) and DC have laws disallowing incarcerated felons from voting. Thirty-five states prohibit a convicted felon from voting both while s/he is in prison and when s/he is on parole or probation. Twelve states continue to prohibit former incarcerated felons from voting even after they have completed their incarceration and all their parole or probation. Of these twelve states, some only prohibit voting for a limited period of time after all the defendant has finished dealing with the criminal justice system, while some prohibit post-completion defendants from voting only if they committed certain heinous offenses. Thirteen states prohibit a person from voting only when s/he is incarcerated.

No one knows the precise numbers of those who are thereby prohibited from voting, but sociologists Manza and Uggen, in their 2004 paper "Punishment and Democracy: The Disenfranchisement of Nonincarcerated Felons in the United States," put the number conservatively at 4.7 million people. About 1.4 million of these are black men. When you include people in local jails during election time or those held during trial at the time, one can come up with a figure of well over 5 million people whose right to vote has effectively been curtailed. Striking it is that fully 3/4 of these people are no longer in prison, but are either on probation, parole or completely free from the criminal justice system.

This number is "up" dramatically from the 1970s because of the boom in prison-building undertaken in America in the 1980s and 1990s. And, you can perhaps see this point coming, since African-Americans are disproportionately represented in the prison system, they are disallowed from voting in numbers hugely disproportionate to those of Caucasians. Some studies show that up to 25% of African-American males are kept from voting in certain states by felony disenfranchisement statutes. And, the numbers will probably get worse.

When you put this up against the numbers of those who actually voted in the last Presidential election (121,000,000), we see that disinfranchised voters constitute 4% of that number. Of course, it is likely that even if all of those 4.7 million people were registered to vote, many of them would not vote, but however you slice it, 4.7 million people is a lot of folks to be lopping off of your voting rolls.

One may argue that if they serve time in prison they ought to have their right to vote taken away, but even if that argument is granted (and it is subject to lots of discussion), it only applies, one would think, while they were in prison. That is, the punishment for felonious behavior is incarceration and taking away your right to vote, but your rights are restored to you upon completion of sentence.

A Word About History

These felon disenfranchisement statutes have been around a very long time. Four (of twenty-six) states had them in 1840, but about a dozen had them by the civil war. In those early days one's right to vote could be taken away if you committed crimes that related to the exercise of the franchise--such as election fraud. However, by the time the Civil War had ended, fully 29 of the 37 states had provisions in their constitutions allowing felon disenfranchisement statutues. Througout the 1870s-1890s these laws swept through the South as ways of prohibiting minority people from voting, since many of the crimes for which one would fall under the disenfranchisement statute were particularly "black male" crimes--such as the vague crime of "moral turpitude." Most northern states followed suit, however, so that today, as we have seen, 48 of the states allow some kind of felon disenfranchisement.

The history of felon disenfranchisement laws is particularly complex because one not only has to show what crimes enabled one to lose the right to vote, but whether one lost that right for life or only for a specified time. The only way, in fact, to do a competent job (like the study of the death penalty, for example) is to patiently do a state-by-state historical overview survey. I could find none that was easily accesible to me.

Conclusion

One of the popular claims in the American belief system is that we don't discriminate in access to the franchise. That kind of discrimination went out, once and for all, in the Voting Rights Act of 1965. The more we lop people off from the right to vote, then, the more we belie a basic tenet of our democracy. I think that it makes most sense, for the time being, to try to eliminate restrictions on the right to vote in those twelve states which curtail the right even after all connection with the criminal justice system is over. That would, it seems to me, be a clear step in the right direction.

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