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Felony Voter Disenfranchisement

Thursday, October 21, 1999

My name is Marc Mauer and I am the Assistant Director of The Sentencing Project, a national non-profit organization based in Washington. The Sentencing Project was founded in 1986 to conduct research on criminal justice policy issues and to provide technical assistance to state and local jurisdictions on sentencing options. My observations on the issue of felon voting disenfranchisement are based on research and programming work I have conducted over the past twenty-five years.

In 1998 I co-authored a study with Human Rights Watch titled "Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States." In that study, we produced estimates of the number of persons subject to disenfranchisement as a result of a felony conviction and examined the history and rationale for these laws. I will try to summarize the most relevant issues from that study in my remarks today.

History of Disenfranchisement Laws

Felony disenfranchisement laws have existed in many states since the founding of the nation two hundred years ago. At that time, only a minority of the newly-independent population was granted the right to vote. Women, African Americans, the poor, and illiterates were all specifically excluded from the voting population, along with convicted felons. All of these other groups, of course, are permitted to vote today and we now look back on the period of their exclusion with a great deal of national embarrassment. The only significant group still disenfranchised are felons and ex-felons.

In this regard, the United States stands at an extreme end of the spectrum in comparison to other democratic nations. In no other democracy are convicted offenders who have served their sentences disenfranchised for life, as is done in a number of our states. A few countries restrict the right to vote for a short period after the conclusion of a prison term, but only in the case of persons convicted of electoral offenses. And, in fact, many countries - including France, Germany, Israel, Norway, and Poland - permit persons in prison to vote as well.

After the Civil War, the felony voting restrictions took on new significance in some Southern states. Along with other ostensibly race-neutral voting barriers - literacy tests, poll taxes, and grandfather clauses - the felony voting laws were tailored in some states specifically to disenfranchise newly-empowered blacks. In South Carolina and Alabama, for example, legislators explicitly crafted laws that resulted in disenfranchisement for crimes supposedly committed more frequently by blacks and excluded offenses believed to be primarily committed by whites. While the felony voting restrictions in place today contain no such direct racial intent, their application has resulted in substantial racial disparities nevertheless, for a complex set of reasons.

Voting Restrictions and Impact

Currently, 46 states prohibit prisoners serving a felony sentence from voting. (The four states that permit inmates to vote are Maine, Massachusetts, New Hampshire, and Vermont.) In addition, 32 states deny the vote to persons on probation and/or parole, and in 14 states a felony conviction can result in disenfranchisement for life. Voting in federal elections is determined by the voting laws in place in one's state of residence.

There are today an estimated 3.9 million Americans, representing two percent of the adult population, who cannot vote as a result of a felony conviction. Of these, 1.4 million are persons who have fully completed their felony sentence but reside in one of the states that impose lifetime disenfranchisement.

States that disenfranchise for life generally have some type of mechanism in place whereby ex-felons can apply to have their civil rights restored. Typically, ex-felons are required to obtain a pardon from the governor or action by a board of pardons or parole. In practice, it is often extremely cumbersome to engage in this process and few ex-offenders have the financial and political resources needed to succeed. In Virginia, for example, only 404 ex-felons had their voting rights restored in a recent two-year period, of a total of 200,000 such persons in the state. In Mississippi, ex-offenders must either secure an executive order from the governor or have a state legislator introduce a bill on their behalf and obtain a two-thirds vote in the legislature.

The differing voting restrictions in each state result in participation in the electoral process that is in part based on one's state of residence. An ex-felon in West Virginia can vote for President, but an ex-felon in Virginia cannot. Similarly, if an ex-felon moves from Virginia to West Virginia, he or she regains the right to vote, while a shift from West Virginia to Virginia would result in the loss of the vote.

As a result of the high proportion of minorities in the criminal justice system, felony voting restrictions have had a very disproportionate racial impact. Our study estimated that 1.4 million African American men, representing 13 percent of the black adult male population, cannot vote as a result of a current or prior felony sentence. In ten states, more than one in five black men is currently disenfranchised. Given current rates of felony convictions and incarceration, we can expect that in the next generation of black men 30-40 percent will lose the right to vote for some or all of their adult lives.

Rationale for Restoring Voting Rights

Given the increasing numbers of persons in the criminal justice system, the felony voting restrictions are resulting in increasing numbers of Americans losing their voting rights each year. There are several reasons why policymakers should consider reversing this trend by examining relevant legislation:

1. Participation in voting aids in rehabilitation and public safety.

When offenders are sentenced to prison or probation for a felony conviction, their sentence

incorporates a loss of liberty and other punitive measures. What is sometimes forgotten, though, is that 95% of all prisoners (and, of course, all probationers) will return to the community after serving their sentence. If society is to encourage their participation in legitimate activities, it needs to foster a sense of obligation and responsibility among offenders. One clear means of doing so is through participation in the electoral process. Those persons who believe they have a stake in the welfare of their community are less likely to engage in illegal activities that will bring harm to individuals.

For ex-offenders in particular, felony voting restrictions conflict with the longstanding principle that once an offender has "paid his debt to society" he should be free to join the community again as a full member. Exclusion from the electoral process instead sends a message that this "debt" can never be paid in full.

2. Felony voting restrictions are antiquated.

Many of the voting restrictions currently in place were enacted over a century ago and have rarely been examined since that time. In many instances the rationale originally offered for such policies holds little relevance to current conditions. One finds in the legislative history and legal cases references to these laws as being necessary to protect the "purity" of the electoral process or to protect against fraud. For offenders convicted of such crimes as bribery, treason, or electoral fraud, this might represent a legitimate concern. It is difficult to understand, though, how a person convicted of stealing a car or writing a bad check twenty years ago presents a threat to the electoral process itself.

3. Voting restrictions should not serve as a form of punishment.

Another rationale offered for the disenfranchisement laws is that they constitute a legitimate punishment that accompanies a felony conviction. Here, too, it is not clear what useful purpose is served by such statutes, and particularly so for persons who have completed their sentences. When a person is convicted of a felony offense, the punishment imposed will inevitably curtail some of the individual's rights, but these are generally related to public safety concerns. For offenders sentenced to prison, the restrictions imposed are generally those required to maintain the security of the institution. Thus, a prisoner can subscribe to a weekly newsmagazine, but not to a publication that provides information on how to produce explosive devices. Restrictions placed on parolees are designed to reduce the risk of criminal activity by, for example, prohibiting them from associating with known criminals. But there is no rational crime control purpose that is served by prohibiting an ex-offender from voting.

Further, voting restrictions are imposed without any action by a judge and without any sense of proportionality. Thus, offenders convicted of larceny lose their voting rights along with mass murderers. This can result in persons convicted of a single relatively minor crime, even one committed before reaching voting age, being turned into political "outcasts" for life.

4. Felony voting restrictions exacerbate racial tensions.

Whether intended or not, disenfranchisement laws have had a significantly disproportionate impact on African Americans, and one that is increasing each year. While there need to be consequences for persons who violate the law, unnecessary policies such as the felony voting restrictions serve only to communicate a message of exclusion from the political process. If we are to promote racial harmony in our society, it is vital to make our democracy as inclusive as possible.

Conclusion

Laws in the United States that disenfranchise persons convicted of a felony offense are resulting in greater numbers of persons being excluded from the ballot box as the number of persons under criminal justice supervision continues to expand. These laws have also had a significant impact on racial minorities and run counter to society's legitimate interest in promoting the development of law-abiding ex-offenders who have a stake in the well-being of their community.

The issue of felony voting disenfranchisement is not a question of whether there should be punishment for crime. It is instead a question of whether society is promoting practices and behaviors that will make for a more inclusive and democratic community. It is long past time to reconsider the wisdom of such policies.