ex-felons denied the vote
by Eva Kuras
Z magazine, May 2005
In Florida, where about 600,000 ex-felons
are disenfranchised (one-third of all disenfranchised ex-felons
in the country), newspaper editorials calling for reform have
been appearing regularly in the past year in such mainstream outlets
as the Orlando Sentinel and the Miami Herald. There has been so
much public pressure in Florida that even Republican legislators
are calling on the governor to restore voting rights to ex-felons.
Voting rights have been won in recent
years in Connecticut, Delaware, and Maryland through legal, legislative,
and community initiatives. In Connecticut, a broad coalition of
groups came together to support a bill restoring voting rights
to felons on probation, which was finally passed after a large-scale
public education effort. The details of activists' organizing
strategies in these states are on the Sentencing Project's website.
The American Correctional Association
has also added their voice of support, calling for states to end
their practice of disfranchising parolees and people who have
completed their prison terms.
According to the results of a 2002 poll,
the public appears to be in agreement with these efforts, as 80
percent of respondents supported the restoration of voting rights
for ex-felons who have completed their sentences. The number went
down, however, when respondents were asked about certain categories
of ex-felons (such as those convicted of murder or a sex crime).
Sixty-four percent and 62 percent respectively support the right
of probationers and parolees to vote. For currently incarcerated
felons, however, support diminishes to 33 percent.
While all states except Maine and Vermont
disfranchise currently incarcerated felons, state disenfranchisement
laws vary widely for ex-felons and those on probation or parole.
Florida is one of six states with the harshest variation, often
referred to as "permanent disenfranchisement." This
means that all those convicted of a felony who have completed
their sentences are denied the right to vote for the rest of their
lives, unless they apply successfully for a restoration of rights.
This is a lengthy and difficult process, which many offenders
don't even know about (as they often don't realize they have lost
the right to vote in the first place).
Another eight states disfranchise a portion
of their ex-felon populations for certain categories of offenses
or for a limited time. Even then, ex-felons must still apply for
restoration of their rights. The Sentencing Project just came
out with a report ("Barred for Life") surveying the
restoration processes of all 14 of these states.
The rest of the country either automatically
restores voting rights upon prison release, after the completion
of parole, or after the completion of both parole and probation.
Only one-quarter of the disenfranchised are currently incarcerated.
All the rest are either under some sort of community supervision
(parole or probation) or are ex-felons.
It is interesting to note that while non-incarcerated
felons have been gaining back the right to vote in many states
since the 1960s, the percentage of disenfranchised felons who
are currently in prison has continually increased to nearly 100
percent. While there is little public support for extending the
franchise to this sector of felons in the United States, 18 countries
in Europe have done so.
Nationally about 4.7 million people with
a felony conviction are disenfranchised, or 2.3 percent of the
voting-age population. In Florida, the percentage rises to 7 percent
(the highest percentage of any state. That such large numbers
are affected is mainly due to the country's high incarceration
rate, the highest known in the world.
The U.S. high incarceration rate has mainly
been a consequence of the way the "war on drugs" was
waged in the 1980s and 1990s. Judicial discretion was narrowed
through such means as federal and state sentencing "guidelines"
(really sets of rules judges must follow), less use of parole,
and harsh mandatory minimum sentences. More people going to prison
for longer periods of time was the result.
It was the "war on crime" that
laid the groundwork for this latest variation of the "war
on drugs," which, according to Katherine Beckett in her book
Making Crime Pay, first came on the national stage in the 1920s
when it was used as an attack against immigrants and political
dissent. Crime re-emerged as a major issue in national politics
in the 1964 presidential campaign. Republican candidate Barry
Goldwater used the "law and order" rhetoric of southern
governors and law enforcement officials who were attempting to
discredit the civil rights movement (calling civil rights protesters
"thugs" and "lawbreakers"), in order to attack
Johnson's Great Society programs and the idea of criminal rehabilitation.
The public was swayed by the massive media
onslaught that endlessly repeated politicians' claims, and as
a result crime control expenditure ballooned from $4.6 billion
in 1965 to $100 billion by 1993.
While crime rates were fluctuating between
1972 and 1996, the incarceration rate quadrupled. Minorities have
been particularly affected. Blacks are now over one-half of all
prison inmates, up from one-third twenty years ago.
Felony disenfranchisement laws were used
by southern states as a means of disfranchising blacks after the
Civil War. Mississippi didn't even include those convicted of
murder or rape in their list of crimes invoking disenfranchisement,
because they weren't believed to be "black" crimes,
while Alabama included non-felonies such as vagrancy (crimes the
state said involved "moral turpitude," which were believed
to be "black" crimes) until the Supreme Court overturned
their criminal disenfranchisement provisions in 1985.
Currently, about one in seven black men
are disenfranchised in the country. In Florida, that proportion
is nearly one in three.
In an article examining the impact of
felon disenfranchisement on blacks, researchers Uggen, Manza,
and Behrens note, "The role of race in driving the adoption
or extension of disfranchising measures aimed at felons or former
felons fits, therefore, into a much larger historical pattern:
white political elites employing racial stereotypes and fears
of crime to eliminate core citizenship rights of large numbers
of African Americans."
Supporters of felon disenfranchisement
have often conjured up the idea of "the purity of the ballot
box" in defense of keeping felons out of it (not an unfamiliar
argument in our history of voting rights struggles). Others, including
courts, have stated that felon disenfranchisement is not punishment
but a legitimate voting qualification, like age or residency.
Those who have feared electoral defilement
describe a "criminal voting block" that would possibly
vote against the criminal justice
system and more election crimes as past
criminals are more likely to commit them. But, as one law review
article noted, these two arguments are contrary to our "democratic
commitment to majority rule" and our commitment to "innocent
until proven guilty."
In their report, "Losing the Vote,"
the Sentencing Project reminds readers of the severity of the
primary punishment for prisoners, the loss of liberty. Any further
restrictions on prisoners' rights can only be justified as being
necessary for the safe and orderly operation of the prison, but
such reasoning does not hold for barring the right to vote.
Viewed as additional punishment, it is
still problematic given the "lack of proportionality and
absence of participation by a judge." The report goes on
to say: "Given that incarcerated offenders are suffering
all the losses and hardships that necessarily attend life behind
bars, a state's interest in inflicting even more punishment can
scarcely be weighty enough to justify deprivation of another fundamental
Beyond the impact on the individual person
with a felony conviction, felon disenfranchisement laws may influence
elections. A study from 2002 published in the Amen- 7 can Sociological
Review found that re-enfranchising Florida's ex-felons in time
for the 2000 election would have swung the state's (and thus the
country's) vote to Gore.
The authors also found that 7 senatorial
elections would have been overturned in favor of the Democrats
if felons and ex-felons had had the franchise, out of some 400
Senatorial elections from 1978 to 2000. This could have had an
impact on the partisan balance in the Senate because of the advantage
of incumbency, which these seven Democrats would have had. At
the local level, these kinds of effects would be presumably even
more dramatic, particularly in areas with high concentrations
of disenfranchised felons.
The difficulty in finding a justification
for felon disenfranchisement laws led Alexander Keyssar to conclude
in his book The Right to Vote that there has been a generally
held belief, though usually unstated, that voters should be moral
persons. He adds: "Coexisting uneasily with the broad claim
that the franchise was a right was the resurgent notion that the
state could draw a line between the worthy and the unworthy, that
it could determine who was fit to possess the right of citizenship."
For those working towards a rehabilitative
criminal justice system, which helps those released from prison
to re-join the community, and those still in prison to prepare
to do so, at the moment disenfranchisement laws remain an obstacle.
But activists are fighting impressively and will hopefully inspire
others to broaden and deepen the struggle for democracy in our
Eva Kuras is a writer and member of the
Reforming the Electoral Process
Index of Website