Criminal Disenfranchisement
Two hundred years ago, most Americans -- including unpropertied men, women (propertied or not), African Americans, soldiers, illiterates, and non-English-speakers -- could not vote. Today, there's just one group that, as a matter of law, is routinely barred from voting: felons.
Progress, certainly. But that remaining restriction -- "criminal disenfranchisement" -- is a doozy. About four million U.S. citizens are now barred from voting because of a criminal conviction. The majority of these people are not incarcerated -- either because they're on probation or parole, or because they've completed all elements of their sentence. The United States not only executes more offenders than does any other democracy, but it is the only democracy that indefinitely bars so many criminals from voting.
The penalty falls heavily on African Americans. Nationwide, one in seven black men has indefinitely lost the right to vote because of a criminal conviction. In Florida and Alabama, the number is one in three. These figures reflect not just differential conviction rates but the racially biased history of criminal disenfranchisement. Like such devices as the poll tax, the grandfather clause, and the literacy test, criminal disenfranchisement law came to prominence after Reconstruction, when a number of Southern states tailored their voting laws to target crimes of which blacks were more likely to be convicted than whites. The Supreme Court has struck down the most egregious of these Jim Crow provisions, yet the racially unequal effects of felon disenfranchisement remain.
Fortunately, criminal disenfranchisement laws have faced increased scrutiny recently. State legislatures are considering reform bills; courts are hearing fresh challenges to the policy, and reform advocates convened three national conferences in 2002 alone. The crucial catalyst was a 1998 report by The Sentencing Project and Human Rights Watch that reviewed the patchwork of state laws governing disenfranchisement and attacked arguments in favor of the policy. But it was the 2000 Presidential contest in Florida (where else?) that put a spotlight on state laws barring felons from the polls.
The spark was Florida's disastrous effort to attack fraud. Details are still emerging, but the kindest version of the story is this: county clerks needed to clean up their voting rolls, eliminating those people who had died, moved, or been convicted of a felony. State officials hired a Georgia company called ChoicePoint to do the research. ChoicePoint claims that it generated a rough tally of all those who might have needed purging from the rolls, which county officials would then verify, voter by voter. But state and county officials say they thought they were getting the final list, and they promptly disqualified everyone on it. In the process, many living, local, law-abiding citizens lost the opportunity to vote -- including a disproportionate number of blacks.
The most common argument in favor of disenfranchising convicts is that it constitutes part of their punishment. It appeals to the tough-on-crime mentality: "They broke the law, so they should pay. Why let 'em vote? " At first glance, this position seems perfectly reasonable. Yet its logical flaws and drawbacks as policy are serious.
To be worth the name, criminal punishment must aim at some combination of incapacitation, deterrence, rehabilitation, and retribution. Disenfranchisement fails at all four. Incapacitation, first, would justify disenfranchising only those who commit vote fraud, not all felons. As for deterrence, it is unlikely that a man not deterred from crime by the prospect of a long prison sentence would stay his hand for fear of losing the vote. And disenfranchisement serves no conceivable rehabilitative goal; if the purpose of "corrections" is to bring offenders back into law-abiding society, maybe we should consider forcing them to vote.
That leaves retribution. We take rights from offenders to pay them back for taking the liberty, property, or happiness of others. Incarcerated convicts can't travel, assemble, read, or enjoy privacy with the freedom the rest of us have. But these restrictions are necessary aspects of incarceration; convicts, after all, can still publish their writings, own property, and file civil lawsuits. Abandoning penal necessity as the standard for rights deprivation is a dangerous step. Moreover, it is not clear that taking away the vote in this automatic, invisible way -- from a criminal population which we know to be largely estranged from politics already -- has any retributive power whatsoever.
The history of voting in the U.S. is the story of "common-sense " policies being overturned. For centuries, policy-makers regarded universal suffrage as a lunatic notion. Those who owned no land lacked the "stake in society " necessary for responsible political participation; women lacked the right kind of reason to practice politics; it was absurd for people who couldn't read their own Constitution to claim a role in lawmaking; and so forth. These ideas held sway for a long, long time, but modern Americans found them unpersuasive. It is now time for Americans to re-evaluate the wisdom of barring criminal offenders from voting.
Reforming and/or repealing criminal disenfranchisement laws would serve two vital public interests. First, it would help rehabilitate offenders and solidify their reintegration into society. Nobody, after all, has ever claimed that barring them from voting actually reduces crime. Indeed, the inverse is probably true: allowing the participation of ex-convicts in the political process might create the sense of personal investment that would lead away from a life of crime. More fundamentally, moving past criminal disenfranchisement would strengthen American democracy. It would expand the franchise by eliminating a major and unjustified exclusion - unjustified because punishments should serve a legitimate purpose and be linked to the actual offense. Democracy is weakened when we deprive people of political rights as a way of punishing them. Americans love to be tough on crime, but we shouldn't be tough on the values that our legal system is supposed to embody.
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