Prisoner Voting Rights: A Historical Law Review

The right to vote is a cornerstone of democratic, representative government that reflects the will of the people. In the United States, a person may have their voting rights suspended or withdrawn due to the conviction of a criminal offense. The actual class of crimes that result in disenfranchisement varies between jurisdictions, but most commonly classed as felonies, or may be based on a certain period of incarceration or other penalty.

In the US, the history of felony disenfranchisement dates back to the 18th century. The first felony provisions were introduced in 1792 in Kentucky, although the first actual law disenfranchising felons was introduced by Connecticut in 1818. By 1840, four states had felony disenfranchisement policies. By the American Civil War, about 24 states had some form of felony disenfranchisement policy or similar provision in the state constitution, although only eighteen actually disenfranchised felons.

The Fourteenth Amendment was adopted in 1868, and by 1870 the number had increased to 28 (out of 38 states). The surge of felony disenfranchisement laws after the Civil War led many to conclude that the laws were implemented as part of a strategy to disenfranchise African Americans, especially as the policy was expanded in conjunction with the Black Codes, which established severe penalties for petty crimes and especially targeted African Americans.

In 2016, 6.1 million individuals were disenfranchised on account of a conviction, 2.47% of voting-age citizens. As of October 2020, it was estimated that 5.1 million voting-age US citizens were disenfranchised for the 2020 presidential election on account of a felony conviction, 1 in 44 citizens.

Felony disenfranchisement is one among the collateral consequences of criminal conviction and the loss of rights due to conviction for criminal offense. Opponents argue that such disfranchisement restricts and conflicts with principles of universal suffrage. It can affect civic and communal participation in general.

In 2002, Representative Maxine Waters (D, CA) introduced H.R.2830, the Voting Restoration Act, to congress. From 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for people who had fulfilled their punishments for felonies. As a result, in 2008, more than a half-million people had the right to vote who would have been disenfranchised under prior restrictions.

Felony disenfranchisement reforms between 1997 and 2018 have resulted in 1.4 million Americans regaining voting rights.

The US is an outlier in disenfranchising large numbers of citizens based on criminal convictions

The US is an outlier in its continued denial of voting rights to citizens due to criminal convictions, despite some reforms. The US is a world leader in its scale of imprisonment and imposes restrictions on the voting rights of a substantial number of citizens impacted by the criminal legal system. As of 2022, over 4.4 million people in the US were disenfranchised due to a felony conviction. This is due in part to over 50 years of mass incarceration, wherein the incarcerated population increased from about 360,000 people in the early 1970s to nearly 2 million in 2022.

The right to vote is a cornerstone of democratic, representative government that reflects the will of the people. The international consensus on the importance of this right is demonstrated by the fact that it is protected in international human rights law. A majority of the world's nations either do not deny people the right to vote due to criminal convictions or deny the right only in relatively narrow and rare circumstances.

The US is more extreme than other nations in its continued denial of voting rights to citizens due to criminal convictions. This is partly due to a punitive criminal legal system resulting in one of the world's highest incarceration rates. Felony disenfranchisement policies can be traced back to the time of the founding of the US and have been carried over from the colonial period. The widespread denial of voting rights and its link to mass incarceration is grounded in the use of felony disenfranchisement laws that helped animate the racial caste system in the US.

Two interconnected trends emerged during this time: the expansion of criminal laws targeting Black residents and the disenfranchisement of citizens with felony convictions. Many felony disenfranchisement laws date back to the Post-Reconstruction era following the end of the Civil War. During this period, Black people witnessed both the expansion and restriction of their rights as full citizens. State lawmakers, particularly in the South, implemented criminal laws designed to target Black male citizens and criminalize Black life through "Black Codes". Many states simultaneously expanded the number of crimes classified as felonies and enacted disenfranchisement laws that revoked voting rights for any felony conviction.

Today, the impact of felony disenfranchisement laws on Black communities remains clear. This disparate impact results from disproportionate rates of felony arrests and convictions among Black Americans and other communities of color. Much of this effect reflects disparate law enforcement practices regarding drug offenses, with Black Americans being arrested for both drug possession and sale offenses at considerably higher rates than their proportion of drug use.

While many US states have scaled back their disenfranchisement provisions, a trend that has accelerated since 2017, the US still lags behind most of the world in protecting the right to vote for people with criminal convictions. The US continues to disenfranchise a wider swath of its citizens based on felony convictions than most other countries.

Global Perspective

A study examining the laws and practices of 150 countries with populations of 1.5 million and above found that:

• 35 countries do not ever restrict voting rights based on criminal convictions.
• 21 countries very rarely limit the right to vote.
• 17 countries restrict voting rights for a narrow set of crimes or for limited periods of time.
• 46 countries deny voting rights only during the term of imprisonment.
• 14 countries deny voting rights during imprisonment and for some period thereafter.
• 5 countries impose permanent disenfranchisement.

Felony disenfranchisement is one among the collateral consequences of criminal conviction

Felony Disenfranchisement: A Collateral Consequence of Criminal Conviction

Felony disenfranchisement is the practice of denying people who have been convicted of a felony the right to vote. This practice can be traced back to ancient Greece and Rome, where the removal of voting rights was imposed as part of the punishment for those convicted of "infamous" crimes. Today, felony disenfranchisement laws vary across different jurisdictions, with some countries having no restrictions on the voting rights of convicted individuals, while others impose temporary or permanent disenfranchisement.

History of Felony Disenfranchisement in the United States

In the United States, the history of felony disenfranchisement is deeply rooted in racial discrimination. Many states adopted felon voting bans in the 1860s and 1870s, a time when voting rights for African Americans were being contested. The first US felony disenfranchisement provisions were introduced in Kentucky in 1792, and by the time of the American Civil War, about 24 states had some form of felony disenfranchisement policy. Scholars have linked the origins of these laws to racial discrimination, as they were often designed to target crimes more commonly associated with African Americans.

Impact of Felony Disenfranchisement

Felony disenfranchisement has a significant impact on the voting rights of citizens. In 2022, over 4.4 million people in the United States were disenfranchised due to a felony conviction. This number is a result of the country's high incarceration rate and broad disenfranchisement laws in many states. Felony disenfranchisement disproportionately affects communities of color, particularly African Americans, who are four times more likely to lose their voting rights compared to the rest of the population.

Arguments For and Against Felony Disenfranchisement

Proponents of felony disenfranchisement argue that individuals who commit felonies have broken the social contract and have given up their right to participate in civil society. They believe that felons have shown poor judgment and should not have a voice in political decision-making. On the other hand, opponents argue that felony disenfranchisement restricts the principles of universal suffrage and can create political incentives to skew criminal law against certain groups.

Recent Trends and Reforms

In recent years, there has been a growing movement towards restoring voting rights to individuals with criminal convictions. Many US states have scaled back their disenfranchisement provisions, and reforms have been made through legislative changes, amendments to state constitutions, court victories, and executive action. However, there have also been setbacks, with some states retrenching on voting rights expansions.

Felony disenfranchisement is a complex issue with a long history. While some argue that it is a necessary consequence of committing a felony, others view it as a violation of democratic principles and a barrier to social and political inclusion. As discussions and reforms around felony disenfranchisement continue, it is essential to consider the impact on affected individuals and communities, particularly those who have been historically marginalized.

Felony disenfranchisement laws have been amended since 1997 by 23 states

Overview

Felony disenfranchisement laws in the US vary by state, with some states imposing a lifetime ban on voting for people with felony convictions, while others restore voting rights after a person has served their sentence.

History

The first US felony provisions were introduced in 1792 in Kentucky, although the first actual law disenfranchising felons was introduced by Connecticut in 1818. By 1840, four states had felony disenfranchisement policies. By the American Civil War, about 24 states had some form of felony disenfranchisement policy or similar provision in the state constitution, although only 18 actually disenfranchised felons.

Recent reforms

Since 1997, 26 states and the District of Columbia have expanded voting rights to people living with felony convictions. As a result, over 2 million Americans have regained the right to vote.

Restoration of voting rights

The restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:

• No disenfranchisement: Maine and Vermont, as well as the District of Columbia, have unrestricted voting rights for felons. They allow people to vote during incarceration, via absentee ballot, and have no specific restrictions upon completion of their sentence.
• Ends after incarceration: 23 states restore voting rights to people once they have completed their prison sentence.
• Ends after parole or probation: 14 states require not only that incarceration be complete but also that any parole or probation sentence be complete before voting rights are restored.
• Individual petitions required: Two states require felons to petition the court for restoration of voting after all offenses.

Impact of felony disenfranchisement laws

Felony disenfranchisement policies in the United States impact people of colour disproportionately. Compared to the rest of the voting-age population, African Americans are four times more likely to lose their voting rights. More than 7.4% of African American adults are banned from voting due to felony convictions. Meanwhile, 1.8% of those who are not African American are banned from voting.

Economic barriers

Approximately 30 states require individuals to pay legal debts, fines, or restitution before restoring voting rights. This effectively ties the right to vote to financial status, disproportionately disenfranchising those who cannot afford these payments. Critics argue that this practice constitutes a modern-day poll tax and exacerbates inequalities, particularly among economically disadvantaged communities.

The US Supreme Court upheld the constitutionality of felon disenfranchisement statutes in Richardson v. Ramirez (1974)

In 1974, the US Supreme Court upheld the constitutionality of felon disenfranchisement statutes in Richardson v. Ramirez. The case was brought by three individuals who had been convicted of felonies and had completed their sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. They claimed that the provisions of the California Constitution and implementing statutes that disenfranchised ex-felons denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that the constitutional and statutory provisions in question, as applied to ex-felons whose sentences and paroles had expired, violated the Equal Protection Clause of the Fourteenth Amendment.

The US Supreme Court, however, reversed and remanded for further proceedings not inconsistent with its opinion. It held that California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause. The Court relied on Section 2 of the Fourteenth Amendment, which calls for reducing representation in the US House of Representatives for any state that denies the right to vote to its voters. But Section 2 makes an exception for denying voting rights to citizens because of "participation in rebellion, or other crimes." The Court said that this distinguishes felony disenfranchisement from other forms of voting restrictions, which must be narrowly tailored to serve compelling state interests in order to be constitutional.

Critics argue that felony disenfranchisement restricts and conflicts with principles of universal suffrage

Critics of felony disenfranchisement argue that it restricts and conflicts with the principles of universal suffrage. In the US, the practice of disenfranchising felons is considered a political anomaly. While restrictions on voting have been eliminated over the past 150 years, felony disenfranchisement laws remain in 48 states.

Felony disenfranchisement is at odds with the principle of universal suffrage, which holds that voting is a basic right possessed by all mentally competent adults. By depriving citizens of their political rights, felony disenfranchisement laws exclude certain groups from political decision-making processes. This can have a detrimental effect on civic and communal participation, as well as social reintegration.

Felony disenfranchisement can also create political incentives to skew criminal law in favour of disproportionately targeting certain groups. For example, critics argue that many state felon voting bans in the US were designed to target African Americans and restrict their voting rights.

In addition, felony disenfranchisement laws disproportionately impact people of colour, particularly incarcerated people of colour. This is due to the disproportionate rates of felony arrests and convictions among Black Americans and other communities of colour. As a result, felony disenfranchisement laws have been criticised for perpetuating racial disparities and contributing to systemic racism.

Overall, critics argue that felony disenfranchisement undermines the principles of universal suffrage by excluding certain groups from the political process and perpetuating racial inequality.

Frequently asked questions