Felon Disenfranchisement

[Belsnickel]

So, this is a long(ish) read, but it is the most recent working draft (number 3 or 4, I forget) or an essay I am writing that is a call to action for Southerners. I wanted to share it because I talk about some of the themes we have had come up in the thread and because this is what I have been thinking about lately that caused me to start the thread. A lot of the sources you can find by searching online (or following the URL), but some of them are academic ones behind a paywall. If you are really interested in them, I could attach them.

Quote:Back in 2016, then Governor Terry McAuliffe attempted to collectively re-enfranchise ex-felons in Virginia. When McAuliffe made this move, The Atlantic ran a piece on the history of felony disenfranchisement in the commonwealth, which isn’t much different from the rest of the South. In it, the author discussed how even though civil death, which is the removal of civil society by denying someone their ability to participate, was an older notion, it took on a different form after the Civil War. In Southern states especially, it was tailored in such a way so as to restrict access to the polls by newly freed slaves (Ford). These laws worked in tandem with the notorious Black Codes and the Jim Crow laws we are familiar with, but these policies were different. Felony disenfranchisement is, in theory, colorblind. This benign veneer has allowed these laws to remain in effect while other legal vestiges of our country’s overtly racist past have been repealed.

There are currently twelve states in America where ex-felons continue to be disenfranchised after serving their complete sentence. Of those twelve states, six, including Virginia, are in the South (Uggen et al. 4). This becomes less coincidental when you look at the demographics of those disenfranchised. This isn’t just a Southern problem; it is all over the country, but there is a reason our region needs to take the lead on this issue—it disproportionately affects people of color, specifically African-Americans, in our states. The goal would be a constitutional amendment guaranteeing the right to vote for every citizen of legal age but change at the state level can be more easily affected. Because the South disenfranchises more people, more minorities, than anywhere else in the country, we can take charge and be the vanguard of change. If we make this move, then the country will come with us. The disenfranchisement of ex-felons is immoral and undemocratic, and we must work within our states to further democracy within our borders to be on the leading edge of progress in this country.

Felony disenfranchisement is designed to separate someone from society because they have broken a social contract by breaking the law. This is the entire crux of the concept of civil death that has existed for centuries. On the surface it is difficult to look at this and not consider it to be a punitive action, especially when it extends beyond the end of someone’s sentence at which point conventional wisdom indicates that their debt to society has been paid. This is not how the current legal system handles this issue, though.
In a compelling argument that felony disenfranchisement violates the Eighth Amendment against cruel and unusual punishment, Amy Heath discusses this dissonance in her commentary for the American University Journal of Gender, Social Policy & the Law. She states in her background that while felon disenfranchisement matches closely with expatriation when used as punishment, the practice is instead seen as a “non-penal exercise of the state’s power to regulate the franchise” (Heath 337). To explore this, the constitutional amendments that establish our right to vote in this country—the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth—do not actually grant an individual the right to vote. These amendments prohibit states from removing the right to vote using certain criteria, but it is otherwise left up to the states. That discretion is the issue Heath is referencing. The problem lies in what she also points out, that the practice acts like another punitive action. It is expatriation without physical removal.

If someone is removed from the polity permanently, as someone is with civil death in these states, then does the punishment fit the crime? Therefore, Heath argues that felon disenfranchisement should be overturned because it is cruel and unusual. She asserts that judicial precedence states that punishment must be proportional, and that the civil death incurred by felons in these states is the same as the disproportional punishment that was argued against in Weems v. United States (Heath 349). This is especially true for those who have faced this punishment for a drug offense. As Heath puts it, “[most of] these felons whose rights are essentially taken away are adults who live, work, and pay taxes in their communities, and thus, the deprivation is cruel and unusual punishment” (Heath 351). To reframe this, removal from the polity through disenfranchisement means that these people who have served their sentences now face taxation without any representation. As a citizenry, we considered this cruel and unusual enough to seek our freedom during the Revolutionary War, and those Americans didn’t face the totality of issues that ex-felons face upon release now.

Ex-felons face a lifetime of stigmatization associated with their actions beyond disenfranchisement. Difficulty finding employment and housing are major issues that these individuals are faced with upon release. When this is combined with their civil death it makes assimilation back into society especially difficult (Miller and Agnich 70). Disenfranchisement is seen by a majority of those facing a lifetime of this removal from society as a punitive action. When an ex-felon has been disenfranchised in this way, they react by establishing one or more of these three narratives: embarrassment, fatalism, and possibly anger (Miller and Agnich 81). We expect released felons to reintegrate into society. We expect them to find a job, obtain housing, support themselves and their families, and maintain a law-abiding life. However, we don’t expect them to be active in the processes of our government by voting or serving on juries. When we separate them from the rest of society in this way, driving them to these narratives, we tell our fellow citizens that we don’t really see them as equals. We don’t accept them back into society. The narratives they create are a response to that feeling and it increases the risk that they will commit another crime. If we are to accept ex-felons into our society as our neighbors, it is in our best interest that we help them reintegrate.

A recent episode of the podcast Pod Save America talked about just this. In the live episode “Game of Foxes,” the hosts interviewed Desmond Meade of the Florida Rights Restoration Coalition. This organization has managed to put a referendum on the ballot in Florida that would end felon disenfranchisement for those who have completed their sentences (Meade). The entire interview with Meade is powerful and tells a touching story about a man wrestling with civil death while try to re-integrate into society. He states toward the end that he “would rather have a…neighbor that has went through [the restoration of rights]” because they feel like they can have “a fresh start.” When they don’t have that feeling, “when a person feels like there is no hope…they are likely to do anything” (Favreau et al. 57:20-57:51). What Meade describes here is that fatalism that Miller and Agnich discovered. This fatalism is a result of the exclusion from society that civil death is intended to produce. By hearing Meade’s story and connecting it to the research done on this, it is hard to deny the punitive nature of felony disenfranchisement. It’s frustrating enough that this punishment is dragged out for people that have paid their debt to society for crimes which they have committed, but what we are learning is that the communities to which they return are also impacted. People who were never disenfranchised are acting like they are.

The effects of felony disenfranchisement go beyond the individuals that are disenfranchised. The impact reaches out to their immediate communities, as well. There have been studies done on the concept of how higher rates of disenfranchised felons in a community results in lower voter turnout for the community, including those that can vote. The thought on this issue, as expressed by Traci Burch in the opening of her article, is that the rate of disenfranchisement “affects only 3 percent of adults [and] should have little effect on political outcomes in any real sense” (184). Burch studied the effects of imprisonment and supervision on political participation in North Carolina. North Carolina is a state that disenfranchises felons up until complete release from supervision, so while not one of the six states I am focusing on, they do have disenfranchised people in the community because of felony convictions (Uggen et al. 4). Burch found that when those communities faced a higher percentage of individuals were caught up in this cycle, the overall community saw a decrease in political participation, even among those that did not lose their rights (197). An article published in 2016, two years after Burch’s article, looked at the same issue and found the same finding. What they said was that felony disenfranchisement not only limits the rights of the formerly incarcerated, but contributes “to decreased turnout among and representation for enfranchised citizens” (King and Erickson 816). This wouldn’t be such an issue were this a problem that was applied equally among communities, but this disproportionately affects certain communities more than others.

The percentage of the incarcerated population in the United States that is African American far exceeds their percentage of the general population. African Americans make up about 13.3 percent of the population of the country, yet make up 33.4 percent of the prison population as of the end of 2016 (US Census Bureau Table 4. Projected race and Hispanic origin; Carson and Sabol 5). Since there is a higher rate of incarceration for African Americans, this causes a higher rate of disenfranchisement, meaning it disproportionately impacts the black vote in this country. In fact, over 20 percent of the African Americans of voting age in four of the six states—Florida, Kentucky, Tennessee, and Virginia—have lost their right to vote due to the penalty of civil death. Given Burch, King, and Erickson’s previously mentioned research, it is interesting to consider the rate at which the African American communities have been removed from the political arena through the system that is in place. This has created what Michelle Alexander has called a racial caste (2).

Alexander discusses in her book The New Jim Crow how racial castes have existed in the United States since its inception. Her argument is that the current system of mass incarceration and its effects on the population, the separation from society I have discussed so far, are the newest version of the same historically entrenched caste system (Alexander 2). Alexander presents an account of this disenfranchisement later in her book, which covers many problems with the criminal justice system in our country and is an eye-opening read. She draws comparisons between the poll taxes implemented during the Jim Crow era and the implementation of felony disenfranchisement, nothing that this method is being used to replace those of old (Alexander 192–93). This takes us back to the article from The Atlantic that was mentioned in the beginning of this. Ford mentions in that article that the intentions for felony disenfranchisement were racist.

Even if we remove the racial component, the fact that we disenfranchise people at all can be questionable. We like to think of the United States as the freest, greatest nation on Earth. We see our nation as a beacon of democracy in the world, a system to be emulated. While that is something we should all aspire to, the system is felon disenfranchisement is a stain on this ideal. What do I mean by this, though? What is the ideal when it comes to democracy? These are questions that can be difficult to find answers to, but some have tried to over the years.

There was a political scientist by the name of Robert Dahl (not to be confused with children’s author Roald Dahl, as I did when I first encountered his work) who was the go-to on democratic theory before he passed away. He wrote a book called On Democracy which is a textbook and a guide on democracy. In it he lays out the criteria for a democratic society, five things that a democracy should strive for. The last one, the fifth, is the inclusion of adults (Dahl and Shapiro 38). Dahl points out that these are ideals, things to strive for, but they are also measures that can be used to assess how democratic a society is (Dahl and Shapiro 42). I’m not going to get too deep into Dahl’s work—that would involve much more writing. I’m introducing him to point out that by creating a system in which we remove individuals from our democratic processes, we reduce our democracy. When we have adults, who are not able to participate, it is a threat to our democratic status. If we truly want to be that beacon of democracy in the world, then we need to work to be better. When we look at the effects of felony disenfranchisement through this lens, we can see that this is an issue that affects our entire country and the principles on which it was founded. This has a more far reaching impact than just the ex-felons themselves.

In describing this issue, I’ve said that felon disenfranchisement, or civil death, is a punishment. It could be considered cruel and unusual, it impacts wider communities and not just those ex-felons that have not had their rights restored, it has racist roots and is applied disproportionately to people of color, and it is a threat to our democracy. Christopher Uggen, the same person who authored the report I reference from The Sentencing Project, retweeted someone saying that this is “also a reminder that felon disenfranchisement is discriminatory, arbitrary, and uniquely severe and extensive in the U.S.!” (@carriemariek). This tweet not only says more succinctly what I have been saying up to this point, but it recently started a thread that engaged Twitter users in a prolonged discussion on the issue in response to a recent event.

On March 30, 2018, a woman was sentenced to five years in prison for voting while on probation in Texas (Flynn). Texas isn’t one of the six states that disenfranchise permanently in the South, but it does disenfranchise those on probation (Uggen et al. 4). In all, 48 states disenfranchise felons at some point during the legal process, but they do so in four broad ways, with other specific details that may alter their rules and create a bureaucratic maze to navigate to get voting rights restored. I started off discussing McAuliffe restoring the right to vote for felons in Virginia, and Northam continuing this trend, but I have treated my home state just like the other five on this issue. All it would take is a “law and order” style of governor to take the mansion, leaving us back where we started. What happened to this woman, what we see in Virginia, it all shows how confusing this issue can be for someone trying to reintegrate into society.

In the aftermath of what happened in Texas, The Pew Charitable Trusts posted a write-up in the Stateline section of their website about the convoluted nature of the issue. The author discusses how even enfranchised ex-felons are deterred from voting because of confusion (Beitsch). With felons regaining the right to vote at tree different points across the country, or not at all, and with a variety of bureaucratic requirements, it can be difficult for someone to know when, or if, they are able to vote after their reintegration. Situations like this typically mean that a federal law is the best course of action. The problem is that without a constitutional amendment, the right to vote is overseen by the states and Congress has no authority to act on it. The amendment process is a long and difficult one, so that leaves us focusing on a state-by-state solution.

We need to be working towards ex-felons regaining the right to vote within our states. This is especially true for the previously mentioned six states where disenfranchisement continues after supervision, but all the Southern states disenfranchise their felons not in prison that are under any sort of supervision. If we’re going to reduce prison populations in the South and improve the socio-economic situation for people of color in states where they have faced a long history of oppression, this is a great first step towards this and one in which we could lead the country in progress.

I’ve already mentioned that a law will be on the ballot in Florida this year doing exactly what I’m advocating here, and I hope it passes, making the number of states to focus on five. Florida will likely see a similar result as Virginia did back in 2016 once the rights of their ex-felons are restored. In the wake of McAuliffe’s efforts some 40,000 voters were added to the roles, according to an article from The Atlantic, with 46 percent of those with their rights restored being black (Newkirk II, “How Letting Felons Vote Is Changing Virginia”). This is a major impact to the electorate; remember that both Florida and Virginia disenfranchise over 20 percent of their black populations via this civil death punishment. But this isn’t just about changing the voting population in our states. We must think about the people.

The author for the piece I mentioned above also did a video about the impact on McAuliffe’s move. He visited Richmond and talked with ex-felons whose rights had been restored. While speaking with these people he hears from people who have never voted before, or those that haven’t voted in over 20 years, but a comment from one gentleman gets at the heart of this all. He says “me not having my right to vote…it hurts” (Newkirk II, Why Virginia’s Restoration of Voting Rights Matters 1:11-1:16). That sentence says so much about this issue. People can talk about how it will change election results all they like but restoring voting rights to felons helps them gain dignity and become a part of our society.

We need to be there for these people that are disenfranchised by these policies. We may not feel like this is an issue that directly impacts us even though it does impact our democracy, but that isn’t the only reason. Jason Isbell had a song in his most recent album that reflects my thoughts on this. In his song “White Man’s World” he tells us that our “creature comforts aren’t the only thing worth fighting for” (Isbell and the 400 Unit). This is one of those things that is worth fighting for, to create a better South. So, if you live in Florida, vote “yes on 4” this November. If you live in Mississippi, you can do the same as Florida and put this sort of thing to the voters without having to rely on the legislature. For the rest of us, we must make this a priority for those that represent us. Call, write, show up, do whatever you need to do for this. Make this an issue in your state elections by bringing it up to candidates. This is a change we can and should make to move our country forward.


Works Cited Page

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Revised, The New Press, 2012.

Beitsch, Rebecca. “Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether.” The Pew Charitable Trusts, 5 Apr. 2018, https://pew.org/2q1PFHN.

Burch, Traci R. “Effects of Imprisonment and Community Supervision on Neighborhood Political Participation in North Carolina.” The ANNALS of the American Academy of Political and Social Science, edited by Christopher Wildeman et al., vol. 651, no. 1, Jan. 2014, pp. 184–201. CrossRef, doi:10.1177/0002716213503093.

@carriemariek. ? Also a Reminder That Felon Disenfranchisement Is Discriminatory, Arbitrary, and Uniquely Severe and Extensive in the U.S.! ? Because of Mass Incarceration, over *six Million* Americans, Disproportionately People of Color, Are Disenfranchised. 30 Mar. 2018.

Carson, E. Ann, and William J. Sabol. Prisoners in 2016. NCJ 251149, U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics, 2018, p. 35.

Dahl, Robert A., and Ian Shapiro. On Democracy. 2nd ed., Yale University Press, 2015.

Favreau, Jon, et al. Gang of Foxes (LIVE from Clearwater). https://crooked.com/podcast/gang-of-foxes/. Accessed 6 Apr. 2018.

Flynn, Meagan. “Texas Woman Sentenced to 5 Years in Prison for Voting While on Probation.” Washington Post, 30 Mar. 2018. http://www.washingtonpost.com, https://www.washingtonpost.com/news/morning-mix/wp/2018/03/30/texas-woman-sentenced-to-5-years-in-prison-for-voting-while-on-probation/.

Ford, Matt. “Why Virginia Disenfranchised Felons.” The Atlantic, Apr. 2016, https://www.theatlantic.com/politics/archive/2016/04/virginia-felon-disenfranchisement/480072/.

Heath, Amy. “Cruel and Unusual Punishment: Denying Ex-Felons the Right to Vote after Serving Their Sentences.” American University Journal of Gender, Social Policy & the Law, vol. 25, no. 3, 2017, pp. 327–58.

Isbell, Jason, and the 400 Unit. “White Man’s World”. The Nashville Sound, Southeastern, 2017.

King, Bridgett A., and Laura Erickson. “Disenfranchising the Enfranchised: Exploring the Relationship Between Felony Disenfranchisement and African American Voter Turnout.” Journal of Black Studies, vol. 47, no. 8, 2016, pp. 799–821.

Meade, Desmond. “Floridians Will Vote This Fall on Restoring Voting Rights to 1.5 Million Felons | Rights Restoration.” Florida Rights Restoration Coalition, 29 Jan. 2018, https://floridarrc.com/articles/felon-voter-restoration-initiative-close-making-2018-ballot-supporters-say/.

Miller, Bryan Lee, and Laura E. Agnich. “Unpaid Debt to Society: Exploring How Ex-Felons View Restrictions on Voting Rights after the Completion of Their Sentence.” Contemporary Justice Review, vol. 19, no. 1, Jan. 2016, pp. 69–85. CrossRef, doi:10.1080/10282580.2015.1101685.

Newkirk II, Vann R. “How Letting Felons Vote Is Changing Virginia.” The Atlantic, Jan. 2018. The Atlantic, https://www.theatlantic.com/politics/archive/2018/01/virginia-clemency-restoration-of-rights-campaigns/549830/.

---. Why Virginia’s Restoration of Voting Rights Matters. The Atlantic, 2016, https://www.youtube.com/watch?v=uDnKDjiP0_M.

Uggen, Christopher, et al. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project: Research and Advocacy for Reform, 2016.

US Census Bureau. “2017 National Population Projections Tables.” United States Census Bureau, 13 Mar. 2018, https://www.census.gov/data/tables/2017/demo/popproj/2017-summary-tables.html.