I
n
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 dim- inishes 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
American 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.
