Criminal Court as the New Voting Rights Arena

By Marc Mauer

Vol. 22, No. 3, 2000 pp. 27-28

When voters go to the polls for the November elections, nearly four million people will be forced to stay away. These are not necessarily uninterested voters, but rather people who currently serve or have previously served a felony sentence and are thereby disqualified from voting under state laws. The combined impact of these laws and the dramatic growth of the criminal justice system has led to a situation whereby thirty-five years after the passage of the Voting Rights Act, a record number of Americans in the modern era are now excluded from voting.

The dramatic escalation in the number of people enmeshed in the criminal justice system since 1970 and the racial disparities that have marked that rise have led to the loss of voting rights for an estimated 13 percent of African-American males.

The scope of disfranchisement laws today is quite broad--forty-seven states disqualify prisoners from voting (only Maine, Massachusetts, and Vermont permit inmates to vote),while thirty-two states exclude persons on parole. Twenty-nine states exclude offenders on probation from voting. Further, fifteen states including Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia--exclude ex-felons from voting, persons who have "paid their debt to society." In most of these states, ex-felons are disfranchised for life unless they can secure a pardon from the governor, an action that is often logistically and financially difficult for many ex-offenders to achieve. In Virginia, for example, during a recent two-year period, 404 ex-felons regained their voting rights out of an estimated ex-felon population of more than 200,000.

While disfranchisement laws are often described as a natural consequence of a felony conviction, in fact the United States stands at one extreme of industrialized nations in regard to these policies. No other democracy disfranchises convicted offenders for life and many nations, including Denmark, France, Israel, and Poland. permit prisoners to vote. Even when felons lose their voting rights for a period of time, it is often related to specific offenses or is imposed by a judge, as opposed to being legislatively mandated for all offenders.

Policymakers who support disfranchisement offer several justifications as a, rationale for the loss of voting rights. The first is that disfranchisement is a legitimate aspect of the punishment for committing a crime. A 1975 federal court ruling held that felons "have breached their social contract and, like an insane person, have raised doubts about their ability to vote responsibly. This argument confuses the goals of punishment, which may include the temporary deprivation of liberty, with the loss of fundamental rights. Persons convicted of a felony, for example, do not normally forfeit the right to own property, to marry or divorce, or to initiate a lawsuit. Further, while punishment is normally expected to be proportionate to the offense, disfranchisement is applied to murderers and burglars alike, with no judicial intervention.

The 1974 Supreme Court case of Richardson v.


Page 28

Ramirez raised the possibility of electoral fraud by felons as a reason for felony disfranchisement. While there might be some merit to this argument for those offenders convicted of bribery or fraud, it is difficult to see why the 99 percent of offenders not convicted of these offenses would be considered likely to engage in this type of crime.

Proponents of these policies, like Roger Clegg of the Center for Equal Opportunity, also raise the specter of criminals conspiring to thwart the interests of law-abiding citizens through the ballot box. Clegg suggests that "those who have committed serious crimes may be presumed to lack this trustworthyness and loyalty." This might seem threatening at first blush, but is actually rather ludicrous.

Suppose, for example, a group of car thieves wanted to lower the penalties for car theft. They would need to field candidates to run on this platform, get elected to a state legislature, and then convince a majority of legislators and a governor to enact such policies. This hardly seems like a threat to public safety or democracy.

Perhaps a more likely challenge might emerge from persons convicted of drug offenses who believe that current sentencing laws are overly harsh. This, in fact, is a belief shared by a growing number of Americans. Should not the voices and experiences of those persons most affected by these policies be heard in this debate?

Participation in the electoral process can actually play a significant role in rehabilitation. Persons who feel they have a connection and obligation to a community are less likely to victimize their fellow citizens. The criminal justice system should foster such sense of responsibility, and the right to vote presents a strong means of doing so.

Felony disfranchisement laws would be troublesome at any time, but are particularly so today as a result of the dramatic increase in the punitive dimensions of the criminal justice system.

In recent years, there have been some encouraging developments on the felony voting issue. Legislators in at least seven states, including Alabama, Florida, and Virginia, have introduced bills to scale back or repeal some of the most egregious laws and there is reason for cautious optimism for passage of such laws in several states in the next year or two. In the 2000 legislative session. Delaware lawmakers scaled back the state's lifetime ban on voting for felons, and now restore voting rights five years after completion of the sentence. At the federal level, Rep. John Conyers (D-Michigan) has introduced HR 906, a bill that would permit non-incarcerated felons and ex-felons to vote in federal elections even if they are prohibited from voting in state elections. The rationale for this is that under the current system, there is no uniformity in national elections--an ex-felon in West Virginia can vote for president, but not one in Virginia.

At this country's founding, only adult white male property-holders were permitted to vote. The majority of the population who could not vote included women. African Americans, illiterates, poor people, and felons. Today, all excluded groups except felons and ex-felons have gained the right to vote, and we look back on these former exclusions with a great deal of national embarrassment. As we begin the new century, it is long past time to reconsider the meaning of democracy in a society striving for full inclusion.

Marc Mauer is assistant director of The Sentencing Project and author of Race to Incarcerate (The New Press).