Disenfranchisement of felons: the modern-day voting rights challenge

Civil Rights Journal, Wntr, 2002 by Marc Mauer

On Election Day 2000 in Florida, in the midst of all the dimpled ballots and hanging chads, Thomas Johnson stayed home. Johnson, the African American director of a Christian residential program for ex-offenders, wanted to vote for George W. Bush, but was prevented by Florida law from doing so. In 1992, Johnson had been convicted of selling cocaine and carrying a firearm without a license in New York. After serving his sentence and moving to Florida in 1996, Johnson found that as an ex-felon he was barred from the voting booth. He was hardly alone in this situation, as at least 200,000 others in Florida who had theoretically "paid their debt to society" were also frozen out of the electoral process. Nationwide, four million Americans either serving a felony sentence or who had previously been convicted of a felony were also forced to sit out the election. (1)

The laws that kept these citizens home can be traced back to the founding of the nation. In retrospect it is not terribly surprising that felons were excluded from political participation since the majority of the population was excluded at the time. With the founding "fathers" only having granted the vote to wealthy white male property holders, the excluded population also incorporated women, African Americans, illiterates, and the landless. Thus, political participation in the new democracy was extended to just 120,000 of the two million free Americans (not counting the more than one million slaves and indentured servants) at the time, about 6 percent of the population. (2) Except for convicted felons, of course, all these other exclusions have been removed over a period of 200 years, and we now look back on those barriers with a great deal of national embarrassment.

The exclusion of felons from the body politic derived from the concept of "civil death" that had its origins in medieval Europe. Such a designation meant that a lawbreaker had no legal status, and also had dishonor and incapacity imposed on his or her descendants. The concept was brought to North America by the English in the Colonial period. After the Revolution, some of the English common law heritage was rejected, but the voting disqualifications were maintained by many states. Two hundred years later, every state but Maine and Vermont (which allow prisoners to vote) has a set of laws that restricts the voting rights of felons and former felons. Forty-eight states and the District of Columbia do not permit prison inmates to vote, 32 states disenfranchise felons on parole, and 28 felons on probation. In addition, in 13 states a felony conviction can result in disenfranchisement, generally for life, even after an offender has completed his or her sentence. Thus, for example, an 18-year-old convicted of a one-time drug sale in Virginia who successfully completes a court-ordered treatment program and is never arrested again has permanently lost his voting rights unless he receives a gubernatorial pardon.

While the issue of disenfranchisement would raise questions about democratic inclusion at any point in history, the dramatic escalation of the criminal justice system in the past 30 years has swelled the number of persons subject to these provisions to unprecedented levels. Currently, 2 percent of the adult population cannot vote as a result of a current or previous felony conviction. Given the vast racial disparities in the criminal justice system it is hardly surprising, but shocking nonetheless, to find that an estimated 13 percent of African American males are now disenfranchised.

The coalescence of disenfranchisement laws and racial exclusion began to be cemented in the post-Reconstruction era following the Civil War. Prior to that not only were blacks in the South obviously unable to vote, but only six Northern states permitted their participation. But the newly enfranchised black population in the South was quickly met with resistance from the white establishment. In many states, this took the form of the poll tax and literacy requirements being adopted, along with a number of states tailoring their existing disenfranchisement policies with the specific intent of excluding black voters. One scholar describes this as a measure designed to provide "insurance if courts struck down more blatantly unconstitutional clauses." (3)

The disenfranchisement laws adopted in a number of southern states were not at all subtle, often requiring the loss of voting rights only for those offenses believed to be committed primarily by blacks. In Mississippi, for example, the 1890 constitutional convention called for disenfranchisement for such crimes as burglary, theft, arson, and obtaining money under false pretenses, but not for robbery or murder. (4) In the words of a Mississippi Supreme Court decision several years later, blacks engaged in crime were "given rather to furtive offenses than to the robust crimes of the whites." (5)

Other southern states--Alabama, Louisiana, South Carolina, and Virginia--followed this pattern as well in their targeting of "furtive offenses." The intent of such policy was made clear by the author of the Alabama provision, who "estimated the crime of wife-beating alone would disqualify sixty percent of the Negroes." (6) Alabama's constitution also barred voting for anyone convicted of crimes of "moral turpitude," including a variety of misdemeanors. Here, too, the intent and effect were quite obvious, resulting in 10 times as many blacks as whites being disenfranchised, many for nonprison offenses. (7)