Disenfranchising felons

Well, this is a surprise. It’s a surprise primarily because I thought that felons were permanently disenfranchised in all US states.

It’s secondarily surprising because I thought some obscure Constitutional clause allowed this; and so the irregularity of the actual situation, along with the existence and bizarreness of Richardson vs. Ramirez comes as shock.

But there’s a snowball’s chance in hell of changing these laws or getting the SCOTUS to change their view. I mean, really, US attitudes about criminalization and the penal system are medieval. I bet the overwhelming majority opinion is that this is the least that felons deserve.

“I really don’t think this was always the case.”

As Jessie Allen explains, in Florida — where (thanks to the “war on drugs”) 1 in 5 black men are barred from voting — the felony disenfranchisement law was passed shortly after the Civil War with the aim of disenfranchising African-Americans (this is probably the case for other states too). Problem is, though such laws were adopted in the late 19th century to serve specifically racist purposes, there probably is some longer precedent (unevenly applied, and mostly abandoned by modern polities during the 20th century) that allows states like Florida to cite a “venerable tradition.”

invisible adjunct writes: “As Jessie Allen explains, in Florida…the felony disenfranchisement law was passed shortly after the Civil War with the aim of disenfranchising African-Americans (this is probably the case for other states too).”

Jessie Allen’s argument goes like this: the moderates who, unlike their radical opponents, supported the disenfranchisement of felons, also supported a scheme for legislative apportionment that favored whites over blacks. Therefore their position on the disenfranchisement of felons must also have been racially motivated.

This is a bad argument. The “moderates” were racists. But it does not follow that race was *all* they cared about. Why should we believe that their relative toughness on crime was merely another expression of their racism?

Allen does not even demonstrate that blacks were disproportionately likely to be felons in Florida in 1868. The war on drugs lay far in the future. Does anyone have statistics on this?

As for invisible adjunct’s conclusion that “this is probably the case for other states too,” that is pure speculation.

Keith, section 2 of the 14th Amendment (the one guaranteeing equal protection, among other things) reads

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Two states, Rhode Island and Vermont, don’t disenfranchise felons whatsoever; they even get to vote while they’re still in prison. (Massachusetts was the third until recently; a couple years ago, the state constitution was amended to bar prisoners from voting, though they get to vote after serving their sentences.) Remarkably few states permanently bar felons from voting, though many make the process of restoring franchise lengthy and difficult.

I firmly believe Congress has the authority under the 15th Amendment (guaranteeing the right to vote in spite of race) to prohibit this practice, but it’s not likely to happen in my lifetime.

The arguments presented above for the historical racism as well as the criminal “serving the time” are all legitimate arguments for discontinuing this policy. I would also contend that threshold of what crime is considered a felony is onerous and has not been re-evaluated with respect to cost of living or true impact on the aggrieved person. The felony threshold designation by State may be found at this link http://www.rlpx.com/Felonies.htm and based on a quick observation the range is at a lows of $100 for Vermont (no penalty state) and $300 for Florida (shock!) to $2000 for Pennsylvania. The correlation of this data with the demos data should provide a clearer picture of the disparity, but I do not have time to do it. In addition to the dollar value, I am certain that States designate certain crimes felonies for political reasons, which further skews the data.

It would be great data to analyze, but to what purpose? The US will not change until we are forced to make a decision based on outside forces, like a large-scale fiscal crisis.

greg hunter: what “legitimate arguments” are you referring to? The “historical racism” of the disenfranchisement of felons has been asserted above, but not proven.

True, this policy now disproportionately impacts blacks. But so do *all* forms of punishment for felonies. Does it follow that all punishment for felonies must be discontinued?

Where is the “legitimate argument” for the idea that temporary incarceration, probation, fines and the like are the only acceptable forms of punishment for serious crime?

You’d probably garner a lot more support across the political spectrum for restoring rights to convicted felons, if you were willing to do it for ALL rights, not just the right to vote. It can at least be argued that disenfranchising felons serves the useful purpose of denying those who don’t obey the law any role in determining what the law shall be.

However, denying a felon who’s served his time the right to own a gun accomplishes nothing at all, in as much as if he’s not gone straight, he can just buy a gun on the black market. Making it illegal to buy a gun only prevents the reformed felon from utilizing a gun for legal purposes.

I’m with Brett on the gun question: I’d like to see voting tied to gun rights just to watch lefties squirm over who gets BOTH rights back. Personally I’d restore full rights after some designated period of no criminal activity, like 5 years (after release from prison).

But seriously: 1) we define felonies way too broadly for the purposes of both guns and votes. A guy who got into a bar fight on his 21st birthday shouldn’t still be paying the price when he turns 65. Ditto for, say, someone who passes bad checks. Legislators are tempted to make everything a felony to appear “tough on crime.”

2) The “paid his debt to society” argument doesn’t wash. Who says that the only debt a felon owes is prison time? Who says we can’t impose other debts, like permanent loss of voting rights or gun rights? As a policy matter, perhaps we should restore lost rights, but there isn’t any philosophical or legal reason that we can’t decide that, in addition to a prison sentence, a felon can’t vote for the rest of his life.

3) Who cares if “minorities” are most affected? If you want the right to vote, perhaps you shouldn’t commit crime. That crime is committed unevenly by demographic groups is not an argument for abandoning punishment–it’s a call to discover the causes of crime and ameliorate them.

I don’t think this suit would have a prayer with this Supreme Court, which is not really interested in applying the equal protection clause other than to Republican presidential candidates. (Actually, in this case they’d have a pretty good argument that the equal protection clause allows it.)

Congress really should pass a law, but this is a textbook example of the sort of issue that makes Democrats get all knock-kneed and vote based on possible future negative ads rather than principle.

David Greenbaum: based on the provided summary, the research you linked to would not appear to bear on the question of the “historical racism” of this policy.

If disproportionate impact on blacks is a reason to discontinue the disenfranchisement of felons, then why would it not be a reason to discontinue any other policy with such disproportionate impact, including all felony punishments whatsoever? I don’t think you understand the expression “straw man.” This is a *reductio*.

You are very quick to accuse people of lacking good will.

I am sorry that I took if for granted that poor and minorities are disproportionately represented in the criminal justice system, and I chose to bring up points that had not been fully discussed in a public forum that I have been party. The position I take is one that has evolved from life experience and applies to non-violent offenses. The label of “Convicted Felon” appears to carry a great deal of negative weight in society, and even the member of the NAACP might allow that convicted felons should not have the right to participate in society. Just because they acquired a label through “due process”, does not mean the process or the LAWs were fair. MEN made these LAWs. Did money, race, religion, sexual prejudice or all of the above influence these MEN?

The peers deciding on the guilt or innocence of a person are not told of the entire consequence of the conviction. The jury is informed of the sentence in prison, but not the post jail consequences. If they were, they may not vote to convict at a felony level or absolve the person completely, through jury nullification.

Of course this would not be permitted, because a source of cheap slave labor (sorry prison labor), mainly non violent felons, would be eliminated from the southern labor pool.

“Who cares if “minorities” are most affected? If you want the right to vote, perhaps you shouldn’t commit crime. That crime is committed unevenly by demographic groups is not an argument for abandoning punishment—it’s a call to discover the causes of crime and ameliorate them.”

Except, Rob, that minorities are more likely to be pushed into crimes that are felonies, particulalrly where drugs are involved. Race still plays a part in the justice system, and minorities are still hurt by that.

Rob and Brett, with all due respect, I think a compelling case can be made that you’ve got it backwards regarding gun and voting rights. I submit the following premise for felons (who’ve served their time, I make no comment on the Vermont/RI policy): After their sentences have been served, felons should be granted all rights, assuming there is not substantial risk to society in granting those rights.

This seems like an eminently reasonable way to approach the issue. From this starting point, I submit that granting voting rights to felons places society at no demonstrable risk, and that granting firearm rights to felons may plausibly place society at a substantial risk of harm. The latter is, of course, an empirical question, and if it became clear that there was no evidence of likely harm to society, I would treat these rights as categorically similar with regard to felons.

I fail to see the danger of granting felons voting rights. Even if they form a voting block to push for laws in their interest, they’d still have to get a number of other people to prefer their policies as well. I imagine that would be difficult, and any politician who favored the “felony lobby” to any significant degree would be punished by the voting public. Given the financial and educational profile of felons in the US, the chances of them becoming a powerful special interest seem slim, to put it mildly.

Rob said: “The law may be unjust or bad policy—it often is—but if you obey it, you can work to change it with your vote. If you choose to break it, complaining about the sanction society applies is a little weak.”

I’m not sure what you mean by “a little weak,” it’s a strange phrase that seems to wish to dismiss these sorts of claims while acknowledging that such a dismissal may not be entirely warranted. At any rate, I find this argument, at least when couched in terms this abstract, deeply unconvincing. As far as I can tell, the argument is that once you’ve knowingly broken the law, you’ve no place to complain about the sanction. This is not a principle human beings apply in just about any social situation I can think of. If jaywalkers were given 10 years hard labor, they would certainly have the right to complain. If I failed my students for showing up 30 seconds late to class, they’d have the right to complain. If a soldier was sent to the brig for years for failing to polish his gun properly, he’d have a right to complain. I could come up with an example for any social institution imaginable–our social institutions generally take into account the fact that its members are fallible.

This point is actually well grounded in traditional liberal social contract theory. According to Locke, one of the main reasons we ought to quit the state of nature and enter the state of society is to ensure fairness, consistency and proportionality for punishing violators of the laws of nature.

BTW, correct me if I’m wrong, but from the pdf document it seems that they are arguing about and including statistics on felons even when they are still in prison. Which IMHO is a much less controversial topic than disallowing voting after incarceration.

“People used to describe those who had served their time as having “paid their debt to society.”

We don’t hear that phrase so much any more. To an increasing number of Americans, evidently, the stain of having been convicted of a felony is permanent and ineradicable. I really don’t think this was always the case.”

That is a phrase which came about when voter disenfranchisement based on felon status was even more common than now.

I think one of the problems is that ‘felon’ has become way too broad of a catagory. I have no problem with the idea that rapists, murderers, child molestors, armed robbers and other highly dangerous criminals shouldn’t get to vote ever again. I’m much less comfortable about ‘possession with intent to distribute’ cases never getting to vote again. Probably a relatively good compromise on the issue would leave the more traditional felons without a vote, while letting other felons resume voting at the end of incarceration.

Sebastian: Can you articulate an affirmative reason why the severity of the crime ought to matter after the sentence is up w/r/t voting rights? If we allow that prisoners shouldn’t be voting (I’m not sure about this, but I’ll go along for now, for the sake of discussion), doesn’t the length of the sentence impose differential “voting rights” punishment on different classes of felons?

As I understand your case, the argument seems to be that the thing they did was so bad that voting rights should never be returned, even if there is no obvious or substantive harm to the rest of society for returning those voting rights. It seems to me the freedom of movement associated with non-imprisonment is a much more serious and important bundle of rights than voting. To suggest that some should have the first but not the second strikes me as analogous to offering the grounded teenager the car keys, but telling them they’re still not allowed to use the toaster.

(I realize this denigrates the importance of voting, which is not my intention. Only in comparison to non-imprisonment do I see voting as a relatively unimportant right)

Brett, thanks, I understand your position. I have no problem with firearm rights being a bit more restricted and bureaucratized than voting rights in theory, although the considerations you cite give me pause.

Sebastian, your points make some sense. The problem, of course, is that they would all work much better as arguments against ever releasing bad felons from imprisonment in the first place. The harm they could do through voting is almost certainly entirely hypothetical, and pales in comparison to the harm they can do through physical freedom. Should all “bad” felons spend the rest of their lives in prison? It’s hard to see how your position doesn’t imply this.

I think the best reason for denying the vote to felons is when the severity of the crime shows a lack of respect for the society’s rules. It is appropriate to insist on such respect. Under this principle, minor offenses should not trigger disenfranchisement, but major offenses should.

An important goal of imprisonment should be rehabilitation, including social integration of the offender as a law-abiding citizen. Under this principle, an ex-felon’s vote should be restorable after he or she meets reasonable requirements.

The Report cited by Chris makes a strong case to the effect that, although denial of certain civil rights is an ancient response to crime, it was employed by Southern states after the Civil War as a means of denying the vote to blacks. One method was to punish by disenfranchisement only those offenses most likely to be committed by blacks. However, the fact that disenfranchisement has been crafted in specific ways to accomplish racist ends is not a valid reason for abandoning the policy, if there are good, racially non-discriminatory reasons for it.

Well, we’re not all British here if that makes you feel a little better!

I find the disenfranchisement policy fairly repulsive, though I can’t provide anything like a decent defence of my preferred position. I have fairly extreme pro-suffrage positions (I’d lower the voting age to at least 16, maybe 14, for example) which I’m more strongly committed to than any rival consideration. This isn’t an argument, but I think if you start down the road of debating who is and isn’t deserving of a vote you start diluting the core principles behind democracy fairly quickly, and I think that’s a very dangerous road.

But before I started working in America it wasn’t something I even had to think about. As far as I know this kind of policy is not even on the radar screen in Australia. There’s some occasional movement on whether current prisoners should be able to vote. I think in Victoria the rule is that if it’s a sentence below a certain length (maybe 12 months, maybe 24) you can vote, otherwise no. (That’s completely off the top of my head, so I could be completely wrong.) But I’d never even heard a suggestion that ex-convicts should not be able to vote.

I think when I first heard about the American policy I thought people must be talking about current prisoners, because the idea of ex-prisoners not having voting rights seemed too absurd to even think about. Of course, you’d expect an _Australian_ to think that :)

Well said Mr. Kiernan, Americans are not informed of what constitutes a felony, nor the ramifications of that designation in US society.

What constitutes a felony in the U.K. or Australia? Does the application of spray graffiti?

“capital punishment for graffiti would indeed be wrong”

Strange, because originally in the common law a ‘felony’ was defined as being a potentially capital offense. Making graffiti writing punishable by death would return us to the original meaning.