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The practice of disenfranchising felons is a political anomaly in the United States. It may not have been so inconsistent with prevailing political culture when the vote was a privilege from which most Americans were barred on grounds of property, race, education or sex. Over the past 150 years, however, restrictions on voting in the United States have been eliminated—by legislative action or by the courts—and the principle of universal suffrage has been progressively realized. Voting is now a basic right possessed by all mentally competent adults except those convicted of felonies.44
Depriving citizens of a political right should only be undertaken for compelling reasons and only to the extent necessary to further those interests. But as we discuss below, felony disenfranchisement laws in the United States are not necessary to further any substantial state interests. The fact that disenfranchisement laws have long historical roots is, of course, an inadequate justification for retaining them: as standards of moral decency or political rights evolve, societies continually reject practices that were formerly acceptable. As one court has pointed out, disenfranchisement “doubtless has been brought forward into modern statutes without fully realizing the effect of its literal significance or the extent of its infringement upon the spirit of our system of government.”45
Denying the Vote to Ex-Offenders
There is little good to be gained from disenfranchising ex-felons who have served their time. As Supreme Court Justice Thurgood Marshall stated:
It is doubtful...whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. [Ex-offenders] have fully paid their debt to society. They are as much affected by the actions of government as any other citizen, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of a right to vote to such persons is hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.46
Supporters of disenfranchisement have been hard pressed to identify the state interests furthered by denying the vote to ex-offenders. The most frequently cited interests are: 1) protection against voter fraud or other election offenses; 2) prevention of harmful changes to the law, and 3) protection of the “purity” of the ballot box. But there are severe problems with each one of these putative interests.
Protection against voter fraud is clearly an insufficient rationale for statutes that are triggered by crimes having nothing to do with elections, where laws criminalizing voter fraud exist, and where there is no evidence that ex-felons are more likely to commit voter fraud than anyone else.47
The second alleged state interest is equally inadequate as justification for disenfranchisement.48 There is no reason to believe that all or even most ex-offenders would vote to weaken the content or administration of criminal laws. More important, the Supreme Court has ruled that states may not “fence out” a class of voters because of concerns about how they might vote.49 Conditioning the right to vote on the content of the vote contradicts the very principle of universal suffrage.
The prohibition on “content-based” voting restrictions also dooms the related argument that in order to preserve the “purity” of the ballot box ex-offenders should be excluded from the franchise. Some courts have argued, for example, that ex-offenders should not be able to vote because they have shown themselves to be lacking in virtue and the “requisite judgment and discretion,”50 needed to be able vote “responsibly.”51 It is, however, “unclear why convicted felons are any less capable of making sound political decisions thananyone else.”52 Looked at closely, the “purity of the ballot box” argument is no more than a moral competency version of the idea that the franchise should be limited to people who “vote right.”53 Moreover, in the late twentieth-century United States, it is risible to think that the virtue and judgment of the national electorate is protected by excluding ex-offenders.
Some might argue that disenfranchisement of ex-felons is simply another penalty the state chooses to impose in addition to incarceration, although there is little historical basis for this view.54 It is questionable whether a state may punish offenders by depriving them of any right it chooses. Would a state be able to punish felons by forever denying them the right to go to court or to petition the government? But even if one assumes that deprivation of the right to vote is a legitimate punishment, then such punishment must conform to the fundamental principles governing criminal sanctions. It should, for example, be imposed by a judge following trial, and it should be proportionate to the offense. Yet none of the states require that disenfranchisement be imposed by a judge as part of a criminal sentence. And disenfranchisement laws operate without regard to the seriousness of the crime or the severity of the sentence. As noted above, for example, a person convicted of a single relatively minor crime who never serves any prison time can be turned into a political “outcast” for life. Decades after the crime was committed and the sentence served, regardless of however exemplary the ex-offender’s subsequent life may have been, he or she is still denied the ability to exercise the most basic constitutive act of citizenship in a democracy: the right to vote.55
Denying the vote to ex-offenders accomplishes little of value. Indeed, it may do more harm than good. Disenfranchisement contradicts the promise of rehabilitation. “The offender finds himself released from prison, ready to start life anew and yet at election time still subject to the humiliating implications of disenfranchisement...[Denying him the vote] is likely to reaffirm feelings of alienation and isolation, both detrimental to the reformation process.”56 As the National Advisory Commission on Criminal JusticeStandards and Goals observed, “If correction is to reintegrate an offender into free society, the offender must retain all attributes of citizenship....”57
Representative John Conyers, Jr., a member of Congress who has unsuccessfully championed federal legislation that would restore the franchise to ex-felons, has cogently summarized his reasons for permitting them to vote: “If we want former felons to become good citizens, we must give them rights as well as responsibilities, and there is no greater responsibility than voting.”58
Denying the Vote to Incarcerated Citizens
The widespread and historical practice in the United States of denying the vote to convicted citizens while they are in prison—or even while on probation or parole—has received little scrutiny. To many people the practice may seem an inevitable concomitant of incarceration or a legitimate additional punishment for a crime. It is neither.
A sentence of imprisonment does not strip a person of all his or her rights. One loses the right to liberty—which is why incarceration is such a severe punishment—but retains all other rights subject only to those reasonable restrictions that promote the safe, orderly and secure functioning of prisons. Common sense indicates that the unfettered exercise in prison of the rights of freedom of movement and association would jeopardize the ability of prison authorities to maintain control. There is no plausible argument, however, that permitting inmates to vote, e.g., by absentee ballot, would interfere with prison operations or administration.59
Viewed as additional punishment, the disenfranchisement of incarcerated felons suffers the same problems as the disenfranchisement of ex-felons , e.g., lack of proportionality and absence of participation by a judge. In addition, 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.
44 Disenfranchisement may also have been less controversial when it affected relatively few people. Available data indicate that in 1850 the incarceration rate in the U.S. was 29 per 100,000, and in 1870 it was only 85.3. Indeed, the rate of incarceration remained below 130 per 100,000 until the late 1970s. Department of Justice, Bureau of Justice Statistics (DOJ/BJS), Historical Corrections Statistics in the United States, 1850 - 1984, (Rockville, MD: Westat, Inc., December 1986).
45 Byers v. Sun Savings Bank, 41 Okla. 728 (1914), quoted by Justice Marshall in his dissent in Richardson v. Ramirez.
46 Richardson v. Ramirez, 418 U.S. at 78 (Marshall J. dissenting, citations omitted).
47 See Richardson v. Ramirez, 418 at 79-80 (Marshall, J. dissenting); Note, Disenfranchisement of Ex-Felons: A Reassessment, 25 Stan. L. Rev 845 (1973); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘the Purity of the Ballot Box,’” 102 Harv. L Rev. 1300 (April 1989).
48 The most famous articulation of the fear that former felons might vote in ways contrary to the interests of law-abiding society is Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied, 389 U.S. 1048 (1968) in which the court upheld New York’s ex-felon disenfranchisement provision. The New York legislature then repealed the law. N.Y. Election Law Sec. 152 (Supp. 1973-74).
49 Carrington v. Rash, 380 U.S. 89, 94 (1965); See also Dunn v. Blumstein, 405 U.S. 330, 355 (1972) (state may not limit the vote to those with “a common interest”); Cipriano v. City of Houmac, 395 U.S. 701, 705-06 (1969) (differences of opinion cannot justify excluding any group from the franchise).
50 Washington v. State, 75 Ala. 582 (1884).
51 Shepherd v. Trevino, 575 F. 2d 110, 115 (5th Cir. 1978); Kronlund v. Honstein, 327 F. Supp. 71 (N.D. Ga. 1971).
52 Alice Harvey, Comment, Ex-Felons Disenfranchisement and its Influence on the Black Vote: The Need for a Second Look,” 142 U. Pa. L. Rev. 1145, 1162 (January 1994).
53 In the course of U.S. history, those with political power have frequently used self-serving ascriptions of moral worth and civic virtue as arguments against the extension of that power to others, e.g., women and minorities. See Frank Michelman, The Republican Civic Tradition: Law’s Republic, 97 Yale L.J. 1493, 1495 (1988) (acknowledging the unfortunate tradition of “excluding from the political community all those whose voices would—by reason of supposed defect of understanding, foreignness of outlook, subservience of position, or corruption of interest—threaten disruption of” the community’s unity.)
54 Note, Disenfranchisement of Ex-Felons: A Reassessment, 25 Stan. L. Rev. 845, 856-57 (1973).
55 Some have argued that criminals have repudiated society by breaking the “social contract” and society is therefore justified in repudiating them. We have not been able to find any cogent argument, however, for why a single criminal transgression should necessarily and invariably be deemed a repudiation of the “social contract”. See Note, The Disenfranchisement of Ex-Felons, 102 Harv. L. Rev. at 1304-06.
56 Note, Restoring the Ex-Offender’s Right to Vote: Background and Developments, 11 American Criminal L. Rev. 721, 732 (Spring 1993).
57 Cited in Richardson v. Ramirez, 418 U.S. 24, 85 (Marshall, J. dissenting). Similarly, the President’s Commission on Law Enforcement and the Administration of Justice Task Force Report asserted: “[R]ehabilitation might be furthered by encouraging convicted persons to participate in society by exercising the vote.” Ibid.
58 H. Weinstein, “1 in 7 Black Men are Kept From Voting, Study Finds,” Los Angeles Times, January 30, 1997, p.20.
59 The feasibility of inmate voting is demonstrated in the four states and many countries that respect the right to vote of citizens behind bars. Where large prisons are placed in small towns, the towns might resent being overwhelmed by a comparatively large number of prison voters. That problem could be avoided, however, if prisoners were able to register to vote at their former place of residence.