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Punishing at the Polls Punishing at the Polls The Case Against Disenfranchising Citizens With Felony Convictions De-mos A NETWORK FOR IDEAS & ACTION Demos– Board of Trustees Stephen Heintz, Board Chair Arnie Miller Rockefeller Brothers Fund Issacson Miller Tom Campbell Wendy Puriefoy Haas School of Business, Public Education Network University of California, Berkeley Miles Rapoport - Juan Figueroa President, Demos Anthem Foundation David Skaggs Robert Franklin Center for Democracy Emory University and Citizenship Charles Halpern Linda Tarr-Whelan Visiting Scholar, Tarr-Whelan and Associates University of California Law School, Berkeley Ernest Tollerson New York City Partnership Eric Liu Author and Educator Ruth Wooden Public Agenda Affiliations are listed for identification purposes only. De-mos is a non-partisan, non-profit public policy research and advocacy organization based in New York City. We are committed to a long-term effort to reframe and redesign policy and politics to meet the complex challenges of the 21st century. We seek to bring everyone into the life of - American democracy and to achieve a broadly shared prosperity ADeNETWORK FORmos IDEAS & ACTION characterized by greater opportunity and less disparity. Punishing at the Polls The Case Against Disenfranchising Citizens With Felony Convictions Alec Ewald De-mos A NETWORK FOR IDEAS & ACTION About the Author Alec Ewald teaches at the University of Massachusetts, Amherst, where he is a doctoral candidate in political science. He is the author of a recent article in the Wisconsin Law Review, “‘Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the United States,” from which this report is adapted. He has also published work on the international dimensions of felony disenfranchisement, as well as on American elections and judicial selection. Photo credits: Page 11: Mark Erickson/Getty Images Pages 19 and 33: Ian Waldie/Getty Images Page 25: Sandy Huffaker/Getty Images Page 39: Mario Tama/Getty Images The views expressed in this report do not necessarily reflect the views of the De–mos Board of Trustees. © September 2003 De–mos: A Network for Ideas and Action De–mos: A Network for Ideas and Action 220 Fifth Avenue, 5th Floor New York, NY 10001 212-633-1405 212-633-2015 www.demos-usa.org 4 Punishing at the Polls Contents Preface 7 Executive Summary 9 I. Introduction 13 II. Criminal Disenfranchisement in the U.S., Past and Present 15 Punishing Convicts or Defining the Franchise? Ancient and Medieval Roots: “Civil Death” American Colonial Law Disenfranchisement’s History in the United States A Turning Point: Richardson v. Ramirez III. Arguments for Criminal Disenfranchisement 23 The Liberal-Contractarian Case for Criminal Disenfranchisement Republicanism and the Case for Criminal Disenfranchisement The Racially Discriminatory Case for Criminal Disenfranchisement IV. The Case Against Criminal Disenfranchisement 29 Disenfranchisement and Punishment Disenfranchisement and the Right To Vote Arguments Rooted in Republicanism Race and American Criminal Disenfranchisement V. Conclusion 41 De-mos: A Network for Ideas & Action 5 Preface In the wake of the contested election of 2000, many Americans were shocked to learn that up to 800,000 citizens in Florida were legally barred from voting because of a felony con- viction. These citizens were disproportionately from communities of color, and were among some 4.7 million Americans nationwide who cannot participate in elections because of felony disenfranchisement statutes. Further examination reveals an uneven patchwork quilt of state laws, ranging from some states that do not take away voting rights at all because of a felony conviction, to a number of states that permanently disenfranchise people with felony convictions, resulting in astonishing percentages of citizens deprived of the right to vote. Over the last several years, an energetic movement has sprung up across the United States aimed at restoring voting rights to millions of citizens excluded from our nation’s democratic process. Some states have changed their laws in the past two years to ease the voting rights restoration process. De–mos is proud to be part of this continuing effort. We are currently part of a national collaborative effort of eight organizations, seeking to chal- lenge the constitutionality of felony disenfranchisement laws, repeal or modify these laws through legislative action, and to educate citizens about their voting rights under current statutes. Our partners are the ACLU, the Brennan Center for Justice at NYU School of Law, the Mexican-American Legal Defense and Education Fund, the NAACP, the NAACP Legal Defense Fund, People for the American Way, and The Sentencing Project. This report by political scientist Alec Ewald is an invaluable contribution to those who seek to understand felony disenfranchisement laws. Ewald examines the history of felony disenfranchisement laws, tracing their early development in liberal theory and their explicit racist heritage in the post-Civil War South. He outlines the arguments marshaled in favor of disenfranchisement, and presents a persuasive case that these laws are in con- flict with America’s best ideals and traditions of democracy, and do not further the goals of criminal justice either. De–mos is pleased to present this thoughtful work on a critical challenge for American democracy. We view changing these statutes as one important element of a broader agenda of eliminating barriers to participation in our election process, and, in so doing, helping to achieve a move vibrant and inclusive democracy. For action toolkits on this issue and addi- tional research reports, please view our resource page at www.demos-usa.org/votingrights. Miles Rapoport Steven Carbó President Director, Democracy Program De-mos: A Network for Ideas & Action 7 Executive Summary Almost 4.7 million U.S. adults are now barred from voting because of a criminal convic- tion. The majority of these disenfranchised Americans are no longer incarcerated, and over a million of them have completed their sentences entirely. The United States is the only democracy that indefinitely bars so many ex-offenders from voting. The laws that determine whether citizens with felony convictions can vote — criminal disenfranchisement laws — vary widely across the country. In two states, convicted citi- zens retain their right to vote while incarcerated. In the thirteen harshest states, many crim- inal offenders are denied the vote even after they have completed their terms of incarceration, probation or parole. This report offers a fresh assessment of criminal disenfranchisement law in the United States, based on a comprehensive explanation and analysis of arguments for and against the policy. After describing the state of U.S. disenfranchisement law today and the history of the practice in Western politics, Punishing at the Polls details the claims advanced by advocates and opponents of the policy today. Punishing at the Polls concludes that laws barring criminal offenders from voting should be repealed. Defenders of felony disenfranchisement laws emphasize a few central points. They contend that felons should be deprived of the vote because they have violated the social contract, and so should lose the right to make society’s rules; because they are not trust- worthy, and may commit vote fraud; because they “pollute” the polity; or because barring felons from the polls expresses our respect for the civic process. Arguments for criminal disenfranchisement also have roots in America’s troubling history of racial discrimination. In the late nineteenth century, some state legislatures, espe- cially in the American south, tailored criminal disenfranchisement laws to exclude blacks from the franchise. While the explicitly racist ideology which motivated those policies is almost universally discredited in American public life today, it has played an important role in shaping our country’s disenfranchisement laws. This report systematically critiques the case for felony disenfranchisement laws and exam- ines the negative consequences of these laws. Key points include: • Disenfranchisement fails as a form of punishment. It does not help achieve any of the four goals penal policies pursue: incapacitation, deterrence, retribution, and rehabilitation. De-mos: A Network for Ideas & Action 9 Key rights can only be •Disenfranchisement is a hidden penalty, not a public one. These laws are located in state constitutions and suffrage denied when a real and statutes, not penal codes. Because disenfranchisement is tech- nically not part of a criminal sentence, it occurs automatically, pressing danger to invisibly, and silently as a “collateral consequence” of convic- tion. It is almost never discussed by prosecutors, defense society exists. Criminal lawyers, or judges. Moreover, the sanction is not imposed by a judge considering individual circumstances, but is applied disenfranchisement does across the board with no flexibility or discretion during sen- not meet this test. tencing. •No evidence exists that offenders would vote in a “subversive” way, as some supporters of criminal disenfranchisement allege. In any case, the argument that we should bar some citizens from the polls simply because they might vote to change our laws violates essential American principles. • No evidence exists that offenders are more likely than others to commit electoral fraud, and states have numerous laws on the books designed to prevent and punish fraud. • Disenfranchisement laws have
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