The Disenfranchisement of Ex-Felons

The Disenfranchisement of Ex-Felons

Elizabeth A. Hull
FOREWORD BY John Conyers
Copyright Date: 2006
Published by: Temple University Press
Pages: 232
https://www.jstor.org/stable/j.ctt14bt1q1
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  • Book Info
    The Disenfranchisement of Ex-Felons
    Book Description:

    In the 2004 presidential election, 4,686,539 Americans-a population greater than the city of Los Angeles-were barred from the polls. In a country that has extended suffrage to virtually every other class of citizen, ex-felons are the sole segment of our population deemed unworthy to exercise what the Supreme Court has called "the right preservative of all other rights," the right to vote.The Disenfranchisement of Ex-Felonsprovides a comprehensive overview of the history, nature, and far-reaching sociological and political consequences of denying ex-felons the right to vote. Readers learn state practices in Florida and Ohio during the 2000 and 2004 presidential elections; arguments that have been used in court houses, legislatures, and the press to justify such practices; and attempts to reverse legislation through state and federal governments. In a timely appendix to the 2004 election, Elizabeth Hull makes her case that the battle for civil rights will not be won unless ex-felons, who have fulfilled their obligations to society, are restored the same rights afforded all other American citizens.

    eISBN: 978-1-4399-0441-1
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Foreword
    (pp. ix-xii)
    John Conyers Jr.

    The United States continues to stand alone among the major industrialized nations in permitting an entire category of citizens–former felons–to be cut off from the democratic process. The practice of many states denying voting rights to ex-felons represents a vestige from a time when suffrage was denied to whole classes of our population based on race, gender, religion, national origin, and property. Over the past two centuries, however, these restrictions, along with post-Civil War exclusions such as the poll tax and literacy requirements, have been eliminated to conform with our basic American notion of equality. I believe that...

  4. Acknowledgments
    (pp. xiii-xiv)
  5. 1 Introduction
    (pp. 1-15)

    In the 2000 presidential election, 4,686,539 Americans—more than 2 percent of the voting-age population—were barred from the polls.¹ In a country that has extended the suffrage to virtually every other class of citizens, this group alone was deemed unworthy of exercising what the Supreme Court has called “the right preservative of all other rights,” the franchise.² We are talking about former convicts, men and women who have completed not only their sentences but often their paroles and the terms of their probation as well, yet in many states are still prohibited from casting a ballot.

    Until the 2000...

  6. 2 The History of Disenfranchisement Laws
    (pp. 16-23)

    Former Supreme Court Justice Felix Frankfurter once observed that people have a tendency to confuse the familiar with the necessary.¹ His observation explains why many laws—those delineating gender roles, say, or prohibiting miscegenation—were so widely assumed to reflect necessities that for centuries they went almost unchallenged. So it is with laws that disenfranchise ex-felons: They, too, have deep roots, and until recently few questioned whether they were indeed necessary—let alone just.

    At least as far back as ancient Greece and Rome, polities engaged ininfamia(“ignominy” or “disgrace”), subjecting members who committed “infamous” crimes to “civil death.”²...

  7. 3 The Toll on Minority Communities
    (pp. 24-29)

    Even if policies that deny ex-felons the vote are eventually abandoned, their legacy will endure for decades to come—particularly in minority communities. Over the past thirty years these communities have been particularly hard hit by disenfranchisement laws because of two unfortunate and concurrent trends. First, as a by-product of the country’s “war on crime,” the number of people saddled with felony convictions has mushroomed. Second, this war has been waged disproportionately against racial minorities. The combined effect has been a lamentable decline in the voting strength of America’s least privileged citizens.

    For roughly fifty years, from the 1920s to...

  8. 4 Collateral Damages and Clemency
    (pp. 30-42)

    Disenfranchisement laws wreak particular havoc on minority communities, but they encumber everyone with a felony record, whatever their color—so much so, in fact, that two-thirds of the men and women released from prison end up behind bars again within three years.¹ These laws foster recidivism by sapping the political power of former prisoners, as a class, making them easy targets for politicians who can restrict their access to jobs and social service benefits whenever they must cut the budget or brandish their “get tough” credentials. Of course, these restrictions, some of which are discussed below, make it all the...

  9. 5 Justifications for Disenfranchisement: Pragmatic, Principled, and Philosophical
    (pp. 43-54)

    There must be solid reasons to support disenfranchisement laws, considering that at one time 75 percent of the states enforced them, and that even now fully 64 percent continue to do so. Certainly in the South, during the Reconstruction era, these laws served a baldly racist purpose. As we saw in Chapter 3, however, their present-day proponents insist that they now promote a variety of nondiscriminatory and salutary objectives, from deterring crime to rewarding good citizenship to strengthening the social fabric. Are they right? Does stripping ex-convicts of their voting rights indeed further any or all of these goals?

    According...

  10. 6 Reform: Interest Groups and Strategies
    (pp. 55-67)

    Although miscreants have been ostracized from the political community in the United States ever since the Pilgrims first landed at Plymouth Rock, only in the last few years have reformers attempted in any sustained way to challenge this practice.

    When a handful of scholars first began to research the extent and impact of felon disenfranchisement, they were embarking on a somewhat quixotic mission, because at the time the voting rights of ex-prisoners commanded virtually no public interest.¹ There was some professional debate, but it was limited: Decades earlier the American Bar Association and the American Law Institute had announced their...

  11. 7 State Reforms
    (pp. 68-80)

    Although reformers intent upon re-enfranchising ex-felons are focusing on state legislators rather than Congress, they are doing so with some trepidation. After all, in the area of civil rights, states have checkered histories indeed. Still, these reformers are betting that if any meaningful change occurs it will come from Albany, say, or Sacramento, Olympia or Hartford.

    As a spokesman for the influential public interest group Common Cause explained: “While it appears that federal financial support and guidance will be necessary to achieve needed change, the heavy lifting on many of the election reforms … must be done at the state...

  12. 8 Voting: Constitutional and Civic Concerns
    (pp. 81-95)

    Reformers have focused on the states—where progress is necessarily incremental—only because they’ve concluded that Congress, which alone is capable of enacting large-scale and uniform change, is unable or unwilling to do so. Suppose Congress proved them wrong by passing a law permitting ex-felons to vote in federal elections. Would this be an unqualified good, or by empowering ex-felons might lawmakers be encouraging participation from the very people least likely to vote in the public interest? Does Congress even have the constitutional authority to institute comprehensive electoral reform?

    Surprisingly, a Constitution dedicated to a government “of the people and...

  13. 9 Constitutional Challenges and the Voting Rights Act
    (pp. 96-113)

    When plaintiffs challenge disenfranchisement policies in court, they can avail themselves of several constitutional and statutory weapons, including the equal protection clause of the Fourteenth Amendment and the 1965 Voting Rights Act.

    The equal protection clause, Section 1 of the Fourteenth Amendment, provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Whenever plaintiffs have argued that disenfranchisement provisions violate this clause by unduly burdening racial minorities, however, they have generally been rebuffed by the courts. In fact, while the judiciary now safeguards the voting rights of virtually every other class of...

  14. 10 Cruel and Unusual Punishment and International Law
    (pp. 114-126)

    Given that opponents of disenfranchisement policies have had only limited success attacking them on equal protection or statutory grounds, perhaps it is time they take a risk. They might assert that such policies violate the cruel and unusual punishment clause of the Constitution’s Eighth Amendment, for example. While such a strategy is worth pursuing, it is admittedly problematic: Laws denying ex-felons their voting rights for long periods, or even for life, are unquestionably harsh, but they must be “cruel” in the constitutional sense before they violate the Eighth Amendment.

    What, then, did those who drafted this amendment have in mind...

  15. 11 The Political Consequences of Disenfranchisement
    (pp. 127-137)

    Disenfranchisement is not, at its core, about philosophy, electoral integrity, criminology, or judicial interpretation. It is about politics and power. Accordingly, there is one reason, beyond all others, why disenfranchisement laws stay on the books: Incumbents are convinced that they preserve the political status quo from which they themselves are benefiting.

    They are correct only in part. In many respects ex-felons are sufficiently indistinguishable from the electorate at large in voting turnout, civic attitudes, and policy preferences, that most of the time their re-enfranchisement would scarcely disturb the partisan waters.

    In an effort to assess the voting behavior of erstwhile...

  16. 12 Thinking the Unthinkable
    (pp. 138-148)

    Sarah Walton, the former president of Maine’s League of Women Voters, explains why her state has historically allowed inmates to vote: “In the midst of America’s movement toward independence, back when Maine was a part of Massachusetts, the writers of the state constitution were all too aware of the state’s ability to silence dissent with incarceration. Therefore, in the democracy they created, those incarcerated retained their right to participate in our self-government despite their loss of physical liberty. When Maine became a state, its constitution also allowed Maine citizens who were in prison to vote.

    “And why shouldn’t they?” Walton...

  17. Afterword
    (pp. 149-154)

    This book was first inspired by the 2000 presidential election, revealing as it did the magnitude of ex-felon disenfranchisement in the United States and the civic and political ramifications of this phenomenon. Statistical and other analyses suggest that particular electoral contests may have been swayed by the exclusion of Democratic-leaning ex-convicts, leading me to detail the numerous, varied, and committed efforts undertaken during the past five years to extend voting rights. Partisanship aside, the events of 2000 raise vital questions about the equality and dignity of the men and women who, having served their sentences, seek readmission into the community...

  18. Notes
    (pp. 155-196)
  19. Selected Bibliography
    (pp. 197-210)
  20. Index
    (pp. 211-217)