Felon Disenfranchisement: The Roots of Exclusion

Article by Scot Nakagawa

Felony disenfranchisement is the loss of the right to vote (either permanently or for a period of time) due to a felony conviction. On the face of it, felony disenfranchisement appears to be among the most senseless of state policies. First of all, the laws are different from state-to-state. Nationally, two states never take the right to vote away from those convicted of crimes, even while they are in prison. Thirteen states (including Washington, Nevada, and Wyoming) permanently deny the right to vote to some people with past felony convictions. Four states deny voting rights during incarceration and parole, but not during probation. Sixteen states (including Utah, Montana and Oregon) withhold the right to vote only during incarceration. And 15 states (including Idaho) deny voting rights during incarceration, parole and probation. If you move from one state to another, different rules may apply, even for those with federal convictions, because voting rights are determined at the state level.

The justifications for felony disenfranchisement are even more irrational. Some say that disenfranchisement is good because it is “tough on crime.” However, Alec Ewald of the University of Massachusetts, in a report titled Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions, points out that denying voting rights fails as a form of punishment because it does not help achieve any of the four goals of penal policies: incapacitation, deterrence (who would risk prison time but be stopped by the fear of losing voting rights?), retribution, and rehabilitation.

Some say that disenfranchisement protects our democracy and voting process. But this also makes no sense. How does one protect democracy, which is founded on the principle of participation by all, not just some of the people, by randomly limiting the political participation of some people with felony convictions in some states(but not in others)? This rationale is especially confusing because election fraud is usually a misdemeanor. So if you commit an offense that demonstrates a lack of respect for election rules, you can probably still vote, even in the toughest states.

In addition, because the criminal justice system is imperfect (even John Ashcroft admits that racial profiling is a serious problem), disenfranchisement laws end up affecting some people much more than others. For instance, African American males are disenfranchised at a rate 7 times that of the general population. In some states, around 30% of African American men are disenfranchised. In our region, the state of Washington disenfranchises nearly a fourth of African American males. Latinos, Native Americans and Native Hawaiians are also especially affected.

In spite of how ineffective, confusing and illogical felony disenfranchisement laws are, they end up affecting a lot of people. More than 4.6 million people in the U.S. are denied the right to vote because of a felony conviction. This has a serious impact on the public life of the country.

So why do these laws exist? In order to understand the real reason for felony disenfranchisement, one needs to take a close look at history.

Criminal disenfranchisement has been practiced in the U.S. since colonial times. Back then, the colonies often had laws that punished behaviors judged as “damaging to the common good” with disenfranchisement. In this way, the colonies hoped to keep themselves “pure.” Once the U.S. gained independence, the colonial laws were abandoned. However, many states continued to disenfranchise some people because of criminal convictions.

Disenfranchisement gained a whole new dimension during the era of Reconstruction in the late 1800’s. Reconstruction was a federal program created after the Civil War that had, as one of its goals, the integration of former slaves into the political life of the South.

Until that time, Blacks were denied the right to vote in all but 6 states, and all states with criminal disenfranchisement laws also excluded blacks. Reconstruction, along with the 15th amendment which guarantees voting rights to all citizens regardless of race, ended the ban on Black men voting (but women of all races were still denied the right to vote). Southern white supremacists reacted by trying to get around the law. They did so using a number of different strategies including literacy tests and poll taxes, white primaries, and felony disenfranchisement, all aimed at trying to stop African Americans from voting and gaining a voice in the democratic process.

The Mississippi Supreme Court of 1890 described the strategy in its approval of the Mississippi constitutional convention’s adoption of criminal disenfranchisement laws when it wrote, “…Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone…”

Southern white supremacists understood that African Americans, only recently freed from slavery, were more likely than whites to commit certain types of “crimes.” The situation for the freed slaves was similar in many ways to that of people released from prison – you are given next to nothing, and are expected to make it in spite of discriminatory attitudes and laws that shut you out of many opportunities and benefits of citizenship. Under those circumstances, it is extremely hard to avoid violating some rules or laws to get by. This problem was made worse by the fact that southern whites would often falsely accuse or entrap African Americans in order to exclude them from voting.

Felony disenfranchisement, in combination with many of the other schemes to keep African Americans from voting, worked, and African Americans in the U.S. South (and, by extension, across the country) were pushed to the political margins. It took the civil rights movement of the 1950s and 60s to put an end to some of these discriminatory laws. But there is still one glaring exception. Felony disenfranchisement survived, and in combination with new laws and programs such as the war on drugs (which many argue has been designed to target Black people and other people of color) continues to help keep African Americans on the margins of American political life.

This brief look at history helps to explain why these laws exist in spite of the fact that they are so confusing and seemingly ineffective. While felony disenfranchisement laws don’t work to reduce crime, they do work for the purposes for which they were created—excluding large numbers of African Americans from voting.

This article originally appeared in the Summer 2004 issue of Justice Matters.