Table Of ContentsNext Page


 
 


I. OVERVIEW AND SUMMARY

The expansion of suffrage to all sectors of the population is one of the United States’ most important political triumphs. Once the privilege of wealthy white men, the vote is now a basic right held as well by the poor and working classes, racial minorities, women and young adults. Today, all mentally competent adults have the right to vote with only one exception: convicted criminal offenders. In forty-six states and the District of Columbia, criminal disenfranchisement laws deny the vote to all convicted adults in prison. Thirty-two states also disenfranchise felons on parole; twenty-nine disenfranchise those on probation. And, due to laws that may be unique in the world, in fourteen states even ex-offenders who have fully served their sentences remain barred for life from voting.

While felony disenfranchisement laws should be of concern in any democracy, the scale of their impact in the United States is unparalleled: an estimated 3.9 million U.S. citizens are disenfranchised, including over one million who have fully completed their sentences. That so many people are disenfranchised is an unintended consequence of harsh criminal justice policies that have increased the number of people sent to prison and the length of their sentences, despite a falling crime rate.

The racial impact of disenfranchisement laws is particularly egregious. Thirteen percent of African American men—1.4 million—are disenfranchised, representing just over one-third (36 percent) of the total disenfranchised population. In two states, our data show that almost one in three black men is disenfranchised. In eight states, one in four black men is disenfranchised. If current trends continue, the rate of disenfranchisement for black men could reach 40 percent in the states that disenfranchise ex-offenders.

Disenfranchisement laws in the U.S. are a vestige of medieval times when offenders were banished from the community and suffered ‘‘civil death.” Brought from Europe to the colonies, they gained new political salience at the end of the nineteenth century when disgruntled whites in a number of Southern states adopted them and other ostensibly race-neutral voting restrictions in an effort to exclude blacks from the vote.

In the late twentieth century, the laws have no discernible legitimate purpose. Deprivation of the right to vote is not an inherent or necessary aspect of criminal punishment nor does it promote the reintegration of offenders into lawful society. Indeed, defenders of these laws have been hard pressed to justify them: they most frequently cite the patently inadequate goal of protecting against voter fraud or the anachronistic and politically untenable objective of preserving the “purity of the ballot box” by excluding voters lacking in virtue.

No other democratic country in the world denies as many people—in absolute or proportional terms—the right to vote because of felony convictions. The extent of disenfranchisement in the United States is as troubling as the fact that the right to vote can be lost for relatively minor offenses. An offender who receives probation for a single sale of drugs can face a lifetime of disenfranchisement. Restrictions on the franchise in the United States seem to be singularly unreasonable as well as racially discriminatory, in violation of democratic principles and international human rights law.

This report includes the first fifty-state survey of the impact of U.S. criminal disenfranchisement laws. Among the key statistical findings:

· An estimated 3.9 million Americans, or one in fifty adults, have currently or permanently lost the ability to vote because of a felony conviction.

· 1.4 million persons disenfranchised for a felony conviction are ex-offenders who have completed their criminal sentence. Another 1.4 million of the disenfranchised are on probation or parole.

· 1.4 million African American men, or 13 percent of the black adult male population, are disenfranchised, reflecting a rate of disenfranchisement that is seven times the national average. More than one-third (36 percent) of the total disenfranchised population are black men.

· Ten states disenfranchise more than one in five adult black men; in seven of these states, one in four black men is permanently disenfranchised.

· Given current rates of incarceration, three in ten of the next generation of black men will be disenfranchised at some point in their lifetime. In states with the most restrictive voting laws, 40 percent of African American men are likely to be permanently disenfranchised.

II. FELONY DISENFRANCHISEMENT IN THE UNITED STATES

In the United States, conviction of a felony carries collateral “civil” consequences apart from penal sanctions such as fines or imprisonment. Offenders may lose the right to vote, to serve on a jury, or to hold public office, among other “civil disabilities” that may continue long after a criminal sentence has been served. While both state and federal law impose civil disabilities following criminal conviction, state law governs removal of the right to vote even if the conviction is for a federal rather than state offense.1

Disenfranchisement in the U.S. is a heritage from ancient Greek and Roman traditions carried into Europe. In medieval Europe, “infamous” offenders suffered “civil death” which entailed “the deprivation of all rights, confiscation of property, exposure to injury and even to death, since the outlaw could be killed with impunity by anyone.”2 In England, civil disabilities intended to debase offenders and cut them off from the community were accomplished via bills of attainder: a person attained after conviction for a felony was subject to forfeiture of property, stripped of the ability to inherit or bequeath property and considered civilly dead—unable to bring suit or perform any other legal function. English colonists brought these concepts with them to North America.3
With independence, the newly formed states rejected some of the civil disabilities inherited from Europe; criminal disenfranchisement was among those retained. In the mid-nineteenth century, nineteen of the thirty-four existing states excluded serious offenders from the franchise.4 Convicted felons were not the only people excluded from the vote. Suffrage was extremely limited in the new country: women, African Americans, illiterates, and people without property were also among those unable to vote.

The exclusion of convicted felons from the vote took on new significance after the Civil War and passage of the Fifteenth Amendment to the U.S. Constitution, which gave blacks the right to vote. Southern opposition to black suffrage led to the decision to use numerous ostensibly race-neutral voting barriers—e.g., literacy and property tests, poll taxes, grandfather clauses and criminal disenfranchisement provisions—with the explicit intent of keeping as many blacks as possible from being able to vote. Although laws excluding criminals from the vote had existed in the South previously, “between 1890 and 1910, many Southern states tailored their criminal disenfranchisement laws, along with other voting qualifications, to increase the effect of these laws on black citizens.”5 Crimes that triggered disenfranchisement were written to include crimes blacks supposedly committed more frequently than whites and to exclude crimes whites were believed to commit more frequently. For example, in South Carolina, “among the disqualifying crimes were those to which [the Negro] was especially prone: thievery, adultery, arson, wife-beating, housebreaking, and attempted rape. Such crimes as murder and fighting, to which the white man was as disposed as the Negro, were significantly omitted from the list.”6 In 1901 Alabama lawmakers—who openly stated that their goal was to establish white supremacy—included a provision in the state constitution that made conviction of crimes of “moral turpitude” the basis for disenfranchisement.7

Table 1 provides a state-by-state breakdown of state disenfranchisement provisions. Four states (Maine, Massachusetts, Utah, Vermont) do not disenfranchise convicted felons.8 Forty-six states and the District of Columbia have disenfranchisement laws that deprive convicted offenders of the right to vote while they are in prison.9 In thirty-two states, convicted offenders may not vote while they are on parole, and twenty-nine of these states disenfranchise offenders on probation.

TABLE 1: Categories of Felons Disenfranchised under State Law

State

Prison

Probation

Parole

Ex-felons

Alabama

X

X

X

X

Alaska

X

X

X

 

Arizona

X

X

X

X (2nd felony)

Arkansas

X

X

X

 

California

X

 

X

 

Colorado

X

 

X

 

Connecticut

X

X

X

 

Delaware

X

X

X

X

District of Columbia

X

     

Florida

X

X

X

X

Georgia

X

X

X

 

Hawaii

X

     

Idaho

X

     

Illinois

X

     

Indiana

X

     

Iowa

X

X

X

X

Kansas

X

     

Kentucky

X

X

X

X

Louisiana

X

     

Maine

       

Maryland

X

X

X

X (2nd felony)

Massachusetts

       

Michigan

X

     

Minnesota

X

X

X

 

Mississippi

X

X

X

X

Missouri

X

X

X

 

Montana

X

     

Nebraska

X

X

X

 

Nevada

X

X

X

X

New Hampshire

X

     

New Jersey

X

X

X

 

New Mexico

X

X

X

X

New York

X

 

X

 

North Carolina

X

X

X

 

North Dakota

X

     

Ohio

X

     

Oklahoma

X

X

X

 

Oregon

X

     

Pennsylvania

X

     

Rhode Island

X

X

X

 

South Carolina

X

X

X

 

South Dakota

X

     

Tennessee

X

X

X

X (pre-1986)

Texas

X

X

X

X (2years)

Utah

       

Vermont

       

Virginia

X

X

X

X

Washington

X

X

X

X (pre- 1984)

West Virginia

X

X

X

 

Wisconsin

X

X

X

 

Wyoming

X

X

X

X

         

U.S. Total

47

29

32

15

Most remarkably, in fourteen states, ex-offenders who have fully served their sentences nonetheless remain disenfranchised.10 Ten of these states disenfranchise ex-felons for life: Alabama, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, New Mexico, Virginia, and Wyoming. Arizona and Maryland disenfranchise permanently those convicted of a second felony; and Tennessee and Washington disenfranchise permanently those convicted prior to 1986 and 1984, respectively. In addition, in Texas, a convicted felon’s right to vote is not restored until two years after discharge from prison, probation or parole.

Disenfranchisement of ex-felons is imposed even if the offender was convicted of a relatively minor crime or even if the felon was never incarcerated. For example, Abran Ramirez was denied the ability to vote for life in California because of a twenty-year old robbery conviction, even though he had served only three months in jail and had successfully completed ten years of parole.11 Sanford McLaughlin was disenfranchised for life in Mississippi because he pled guilty to the misdemeanor of passing a bad $150 check.12 As Andrew Shapiro, an attorney who has closely studied criminal disenfranchisement, points out, “an eighteen-year-old first-time offender who trades a guilty plea for a lenient nonprison sentence (as almost all first-timers do, whether or not they are guilty) may unwittingly sacrifice forever his right to vote.”13 Federal Judge Henry Wingate aptly described the political fate of the disenfranchised:

[T]he disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box...the disinherited must sit idly by while others elect his civil leaders and while others choose the fiscal and governmental policies which will govern him and his family.14

In theory, ex-offenders can regain the right to vote. In practice, this possibility is usually illusory. In eight states, a pardon or order from the governor is required; in two states, the ex-felons must obtain action by the parole or pardons board. Released ex-felons are not routinely informed about the steps necessary to regain the vote and often believe—incorrectly—that they can never vote again. Moreover, even if they seek to have the vote restored, few have the financial and political resources needed to succeed. In Virginia, for example, there are 200,000 ex-convicts, and only 404 had their vote restored in 1996 and1997.15 In Mississippi, an ex-convict who wants to vote must either secure an executive order from the governor or get a state legislator to introduce a bill on his behalf, convince two-thirds of the legislators in each house to vote for it, and have it signed by the governor.16

Most state disenfranchisement laws provide that conviction of any felony or crime that is punishable with imprisonment is a basis for losing the right to vote.17 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.

Criminal disenfranchisement can follow conviction of either a state or federal felony. According to the Department of Justice, however, “not all states have paid consistent attention to the place of federal offenders in the state’s scheme for loss and restoration of civil rights. While some state statutes expressly address federal offenses..., many do not. The disabilities imposed upon felons under state law generally are assumed to apply with the same force whether the conviction is a state or federal one.”18 In at least sixteen states, federal offenders cannot use the state procedure for restoring their civil rights. The only method provided by federal law for restoring voting rights to ex-offenders is a presidential pardon.19

As a result of the considerable variation among the states, disenfranchisement laws form a national “crazyquilt.”20 Within the federal structure of the U.S. it may be appropriate that each state determine voting qualifications for local and state offices. But state voting laws also govern eligibility to vote in federal elections. Exercise of the right to vote for national representatives is thus subject to the arbitrary accidents of geography. In Massachusetts, a convicted burglar may vote in national elections while he is in prison, while in Indiana he cannot. A person convicted of theft in New Jersey automatically regains the right to vote after release from prison, while in New Mexico such an offender is denied the vote for the rest of her life unless she can secure a pardon from the governor. In some states an offender who commits a felony andreceives probation can vote, while in other states an offender guilty of the same crime who receives probation cannot.

1 In the United States, state law establishes the electoral qualifications that determine who may vote in state and federal elections.

2 Note, Restoring the Ex-Offender’s Right to Vote: Background and Developments, American Criminal L. Rev. (Spring 1973), pp. 721- 722. Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and the Purity of the Ballot Box, 102 Harv. L. Rev 1300, 1301 citations omitted (1989).

3 Matthew Bodie, "The Disenfranchisement of Ex-Felons: An Argument for Change,” A senior thesis presented to the faculty of the Woodrow Wilson School of Public and International Affairs at Princeton University, April 8, 1991.

4 Note, Restoring the Ex-Offender’s Right to Vote, p.725.

5 Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 540, November 1993.

6 Ibid., 103 Yale L.J. at 541 (quoting Francis B. Simpkins, Pitchfork Ben Tillman).

7 Hunter v. Underwood, 471 U.S. 222 (1985).

8 Efforts are underway in two of these states to disenfranchise prisoners. In Massachusetts, state legislators have passed a constitutional amendment to strip prisoners of their voting rights; it must be voted on again in 1999. In Utah, voters in the November 1998 elections will vote on a proposed constitutional amendment to bar felons from voting, but prisoners would regain the right to vote upon discharge from prison.

9 State disenfranchisement laws and laws governing other civil disabilities are summarized in U.S. Department of Justice, Office of the Pardon Attorney (DOJ/OPA), Civil Disabilities of Convicted Felons: A State-by-State Survey (Washington, D.C.: U.S. Department of Justice, October 1996).

10 In an additional state, Texas, ex-offenders are disenfranchised for two years following the end of their sentence. In this report we use the terms “ex-offender” or “ex-felon” to refer to convicted felons who have completed their sentences and are no longer under criminal supervision.

11 Richardson v. Ramirez, 418 U.S. 24 (1974). Ramirez’s co-plaintiff was denied the vote because of a seventeen-year-old conviction for heroin possession; he had served two years in prison and two years on parole.

12 Ruling in a suit brought by McLaughlin challenging his disenfranchisement, the court ruled that Mississippi’s disenfranchisement provision did not apply to misdemeanor false pretense convictions. The court also ruled that a provision which disenfranchised persons convicted of misdemeanors was unconstitutional unless the state could show the provision was “precisely tailored to serve some compelling governmental interest.” McLaughlin v. City of Canton, Mississippi, 947 F. Supp. 954, 974-75 (S.D. Miss. 1995).

13 Andrew L. Shapiro , “The Disenfranchised,” The American Prospect, no. 35 (November-December 1997): 60-62.

14 McLaughlin v. City of Canton, 947 F. Supp. at 971 (S.D. Miss. 1995).

15 Human Rights Watch telephone interview with Patricia Tucker, extradition/clemency specialist, Office of the Secretary, Commonwealth of Virginia, October 5, 1998. In Virginia, only the governor has the power to remove political disabilities, such as loss of the right to vote, that follow conviction of a crime. Va. Const. Art. V, §12 (1998). According to the Office of the Secretary, a person must wait five years after completion of sentence before he or she may apply to have those disabilities removed. DOJ/OPA, Civil Disabilities of Convicted Felons, p. 133.

16 In 1990, twenty people in Mississippi tried to get the vote restored via legislation; two of the bills were vetoed. “1.46 Million Black Men Can’t Vote,” Dayton Daily News, Feb. 5, 1997.

17 Some disenfranchisement provisions refer to “infamous” crimes or crimes of “moral turpitude.” These have been interpreted as including any felony or crime punishable by imprisonment.

18 DOJ/OPA, Civil Disabilities of Convicted Felons, p. 2.

19 Ibid., pp.2-3.

20 DOJ/OPA, Civil Disabilities of Convicted Felons, p.1.

Table Of ContentsNext Page