Criminal Disfranchisement Laws
By Earl Shinhoster
Vol. 20, No. 3, 1998 pp. 26-27
Criminal disfranchishment laws-the denial of the vote to citizens convicted of crimes-have lasted over a century and have continued to deny and dilute black voting strength long after the death of other disfranchisement laws such as literacy tests, poll taxes, understanding clauses, property tests, and other racist laws and practices banned by the Voting Rights Act of 1965 (Figure 1).
In January 1997, The Sentencing Project released a report authored by Marc Mauer entitled “Intended and Unintended Consequences: State Racial Disparities in Imprisonment.” This report pointed out that one of the consequences of a felony conviction in most states is the loss of voting rights. In all except four states, inmates lose their right to vote during the time they are incarcerated. In addition, thirty-one states disfranchise offenders during the time they are on probation and/or parole, and of these, thirteen states disfranchise most felons for life (Figure 2).
Mauer writes, “As a result of increasing numbers of offenders being supervised in the criminal justice system, we estimate that approximately 4.2 million Americans are now either currently or permanently disfranchised from voting and, of these, 1.4 millon are black males (Figure 3). Indeed, these numbers may in fact be higher.”
This represents 14 percent, or one in seven, of the 10.4 million black males of voting age. The alarm to be sounded here is that the incarceration trends are not receding, but advancing upward steadily. The U.S. Department of Justice, Bureau of Justice Statistics bulletin, “Prisoners in 1996” (June 1997) pointed out that an increasing percentage of the nation’s prisoners are black or Hispanic (males and females).
Between 1985 and 1995, the number of prisoners with sentences of more than 1 year rose by over 600,000. The number of white males increased by 103 percent, the number of black males by 143 percent, the number of white females by 194 percent, and the number of black females by 204 percent. At year end 1995, there were more black males in state or federal prisons (510,900) than white males (493,700).
On December 31, 1995, an estimated 3.2 percent of all black males were in prison, compared with less than half of 1 percent of all white males. While the incarceration rates of both white and black males have risen since 1985, the rate for black males has grown more rapidly. In 1985 black males were about 6.3 times more likely than white males to be in prison; by 1995 they were seven times more likely than white males to be in prison.
In Georgia where a person convicted of a felony loses the right to vote until his or her sentence has been completed and are no longer serving on probation or parole, and owe no fines, has a disproportionate number of black males incarcerated for felony convictions. In a state with traditionally low voter turn-out and where one in four registered voters are black, it is evident that every possible vote counts. Between August 1, 1997 and July 31, 1998, 6,765 persons lost the right to vote because of felony convictions. Of this number 3,087 were black males and 1,010
were black females for a total of 4,097 disfranchised.
Many arguments are advanced as to why such glaring disparities exist in incarceration rates between blacks and whites. Public policy which produced a “war on drugs;” disparities in legal representation; differential treatment of the accused; and discrimination and harassment by law enforcement authorities are perceived to be large contributing factors. An emphasis on citizenship rights and responsibilities taught at home and in schools is as important as holding up the consequences of illegal criminal behavior. Once in the grip of the criminal justice system the average black male defendant, whether guilty or innocent, is less likely to have the financial resources to obtain the best possible legal assistance to mount an effective defense and thereby escape conviction. The legacy of racial and economic discrimination is a current reality, which unfortunately adversely affects the socialization and development of many racial minorities.
The disfranchisement of Americans for the commission of crimes-regardless of the nature of the offense, violent or nonviolent, property or personal, drug related or otherwise-is a direct threat to political empowerment and the exercise of citizenship rights and responsibilities. This carry over from the days of white supremacy has gained support from many Americans because of the fear of crime and the irrational fear of black males in our society.
Punitive disfranchisement of incarcerated and nonincarcerated offenders must be challenged as vote dilution and vote denial-practices held suspect or unconstitutional under the Voting Rights Act.
If 51 percent of incarcerated persons today are African-American males, then we must also look close to home for a solution. We must be willing to ask the hard questions and act on positive long term solutions-why does 12 percent of the total population represent over 50 percent of the nation’s prison and jail population? An inside look into many black communities reflects negative behaviors which often glorify doing time as a badge of honor, a rite of passage. Parents-indeed, the community-must take more responsibility for guiding our children in firm, positive and encouraging ways. We must be willing to loudly warn against the consequences of dropping out of school, being combative with police, getting involved in any criminal activity, or doing anything that might get them arrested.
If more African Americans do not register and do not exercise their right to vote, then we will never change this plague of disfranchisement. In the South we have made great strides in voter registration, voter participation and electing candidates of choice to public office. In fighting at-large voting districts, single-member districts were created to provide a better opportunity to elect candidates of choice. The push for majority-minority districts in the 1980s was successful in changing the complexion, tenor, and tone of civic life in communities across the South. Even in the face of strong opposition and hostile courts, community activists are exploring alternative voting methods that can preserve a strong level of inclusiveness and participation in the electoral process .
Even with the Voting Rights Act the struggle to gain access to the ballot and have the ability to elect candidates of choice is constantly under attack in legislative halls, courtrooms, and the arena of public opinion. We must advocate for an end to criminal disfranchisement laws, not just because they are applied unjustly, but because they take away something so basic to freedom in a democratic society-the right to vote. With the right to vote, comes the responsibility for jury service.
In the South and other jurisdictions covered by various provisions of the Voting Rights Act, vote dilution and vote denial are still compelling issues that will not vanish between now and 2007, when the Voting Rights Act is set to expire. Recent Supreme Court decisions in some of the reapportionment cases have the effect of hampering the ability of the U.S. Department of Justice to aggressively protect minority voting rights. It will take a long, organized mobilization effort to educate and encourage the continued enforcement and extension of the Voting Rights Act.
Earl Shinhoster is the voter education coordinator in the Elections Division of the Georgia Secretary of State’s Office.