Unworthy Citizens

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 right."

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 country.

Eva Kuras is a writer and member of the Orlando Greens.

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