For Felons, an Unjust Political Death

How much do Americans value the right to vote? Pundits and politicians have not yet finished arguing whether the 38 percent turnout in this month's elections was good or bad, whether it showed a new trend of civic involvement or a gross apathy to political life. Perhaps, however, the true test of how much Americans value the right to vote is not how often we exercise it ourselves but how willing we are to deny it to others.

Twelve days before the polls opened, Human Rights Watch and The Sentencing Project announced that 3.9 million adults, including 1.4 million African-Americans, would be legally denied the right to vote Nov. 3. Their report, entitled "Losing the Vote," identified the last group of mentally competent adults to be denied the vote in the United States: those who have been convicted of a felony. Forty-six states and the District of Columbia have felony disenfranchisement laws which restrict offenders' voting rights. In 10 of these states, that disenfranchisement is permanent. A plea bargain for a first-time felony offense can mean losing the vote for life.

Most worrisome is the disproportionate impact of these laws on minorities: 13 percent of African American men were prohibiting from voting Nov. 3, and in Alabama and Florida, where ex-offenders lose the right to vote for life, one-third of black men are disenfranchised.

How were so many people deprived of voting rights? Apart from high crime rates, the reason is that felony disenfranchisement laws take away the vote for a wide variety of offenses. For an offender to lose the vote, the report states, "the crime need not have any connection to electoral processes, nor need it be classified as notably serious. Shoplifting or possession of a modest amount of marijuana could suffice."

In New Hampshire, David Fischer was convicted in November 1996 of domestic violence-related assault and battery and witness tampering--heinous crimes, but not in any way related to the political process or deserving of disenfranchisement. On Oct. 27, Fischer regained his vote, having convinced an appeals court that the state constitution allowed disenfranchisement only in cases of treason, bribery or violation of election laws.

Still, most of those in Fischer's situation will not be helped by the decision, which applies only to New Hampshire. Many of the 3.9 million disenfranchised are currently serving their prison terms; 29 states continue to deny the vote to offenders after they've been put on probation and 10 states never return to ex-offenders their voting rights. Although it is possible for ex-offenders in these states to regain the vote, in practice, it happens rarely; an executive order or pardon from the governor can be required. According to the report, Virginia has 200,000 ex-offenders who are permanently disenfranchised; only 404 of them had their votes restored in 1996 and 1997. For most, the loss of voting rights is irrevocable: It is a political death sentence.

The racial impact of such disenfranchisement is startling. If current trends continue, the report predicts, "the rate of disenfranchisement for black men could reach 40 percent in the states that disenfranchise ex-offenders." Even temporary disenfranchisement can have a significant effect: Thirteen other states currently prevent more than a tenth of their black male population from voting.

Some offenders have attempted to correct these discrepancies in the courts. However, despite their flaws, felony disenfranchisement laws are explicitly allowed under the United States Constitution. The 14th Amendment acknowledges the ability of states to restrict their suffrage "for participation in rebellion, or other crime," and the Supreme Court ruled in 1974 that "this language was intended by Congress to mean what it says." Only one exception has been found, namely disenfranchisement for a specifically racist purpose. However, felony disenfranchisement laws are ostensibly race-neutral, and unless the racial bias is explicit, the courts will not intervene.

Yet a law which is constitutional is not necessarily desirable. The National Advisory Commission on Criminal Justice Standards and Goals, which met in 1973, concluded that taking away the citizenship rights of offenders, including their right to vote, would inhibit the criminal justice system's efforts to reform them. "If correction is to reintegrate an offender into free society, the offender must retain all attributes of citizenship. It stated, "Mandatory denials of that participation serve no legitimate public interest."

Why, then, do we keep felony disenfranchisement laws at all? One possible reason is that disenfranchisement is a form of retribution: By violating the laws of the land, criminals are deprived of the right to make them. But as a punishment, disenfranchisement is both ineffective and gratuitously cruel. Unlike jail time, it does not prevent the offender from committing additional crimes, nor does it have much deterrent effect. Permanent disenfranchisement does not even serve the Old Testament call for an-eye-for-an-eye retribution; a system in which the murderer suffers the same penalty as the shoplifter cannot be just. If used at all, disenfranchisement should at least be restricted to time spent in prison, so that ex-offenders would be restored to full citizenship once their debt to society is paid.

Some would offer a second reason for disenfranchisement: Democracy depends on the virtue of its citizens, and letting criminals vote would only encourage poor government. Such thinking, however, is contrary to America's tradition of expanding democratic participation. When the Constitution was written, propertied white men of more than 21 years of age were viewed as the only "safe" repositories for the vote.

Today, one of the first principles of our democracy is that no subgroup of the population, no matter how talented or wise, will make better decisions more frequently than the nation as a whole. We recognize the right of all individuals to participate in the governing process, to help choose the laws under which they must live. Possession of marijuana, though an act which may deserve punishment, does not merit permanent severance from the body politic.

Regardless of where one stands on the question of rights, restoring ex-offenders' votes will have few practical disadvantages. Most opposition to such a repeal stems from an irrational fear that once given access to the ballot box, ex-offenders will oppose all criminal laws and vote "the wrong way." Even more irrational is the fear that this disenfranchised 2 percent of the population will overpower the political will of the more trustworthy 98 percent. Although the effect of these laws on the voting power of minorities may be significant, as a whole their repeal would do little to sway elections. Massachusetts allows its felons to vote even while in prison and the Commonwealth has not yet dissolved into anarchy.

Yet the danger of such an invasion can easily be used to discredit those who would relax the disenfranchisement laws. There is little politically to be gained from such a position, and much that can be lost--what candidate will take a controversial position to woo a group that cannot vote?

This, then, is the third reason offenders are currently disenfranchised--they're currently disenfranchised. This political Catch-22, in which people need a political voice to get one, is not likely to be broken anytime soon. As a result, there is little reason to be optimistic that those who have been deprived of suffrage will ever regain it. Depending, of course, on how much we value the vote. Stephen E. Sachs '02 lives in Grays Hall.