Running Head: THE DISENFRANCHISEMENT OF CONVICTED FELONS
The Disenfranchisement of Convicted Felons: A Question of Ethics
Camden Dechert
Virginia Commonwealth University
Author Note
This paper was prepared for UNIV 112, taught by Professor Corner
1
THE DISENFRANCHISEMENT OF CONVICTED FELONS
2
Democracy in the United States is an important foundational element to what our
country is founded upon—life, liberty, and the pursuit of happiness. Democracy is an
element that makes this country great—granting inalienable rights to citizens and
ensuring freedom, America is an appealing place for residence. Freedom, however,
comes with a price. In order for our country to have merit and greatness, there are
punishments for breaking laws. Laws come with serious consequences to maintain order
and ensure moral and ethical fairness.
The beauty of democracy is that citizens have the privilege of voting for members
that will faithfully represent the United States. To disenfranchise someone is to deprive
them of their right to vote. People can have this right revoked if convicted of a felony,
which raises some controversy. Some felonies carry more weight than others, furthering
the argument that some convicted felons should be reissued their voting rights depending
on the severity of the committed crime. Although it is relative to each state, the general
consensus of the fourteenth amendment gives states the ability to disenfranchise felons.
Before the Civil War, there were really no laws that provided specific protections for
voting, “although a few northern states permitted a small number of free black men to
register and vote, slavery and restrictive state laws and practices led the franchise to be
exercised almost exclusively by white males” (U.S. Department of Justice, 2015). This
raises some problems today, with our nation’s focus on the drug war. Shortly after the
Civil War, the fifteenth amendment was ratified “which provided specifically that the
right to vote shall not be denied or abridged on the basis of race, color or previous
condition of servitude,” thus superseding laws that prohibited black voters from
participating in democracy (U.S. Department of Justice, 2015). Statistically speaking,
THE DISENFRANCHISEMENT OF CONVICTED FELONS
3
charges from drugs are mainly within the African American population, and the Equal
Protection Clause was implemented in order for African Americans to be treated fairly in
the United States. The irony in this statement is that while amendments have been made
to the constitution to eliminate racial discrimination and give African Americans voting
rights, the disenfranchisement of felons is doing the opposite.
Supporting this claim, “disenfranchisement laws like Tennessee’s may seem
extreme, yet U.S. courts consistently have rejected challenges to statutes that
disenfranchise felons both during and after their terms of incarceration” (Schrader, 2009,
p. 1285). Furthermore, a trio of convicted felons in Tennessee wanted to become citizens
again, so they tried to reintegrate themselves into society but could not obtain
fundamental rights that they had lost due to their time spent incarcerated. Under the
equal protection clause of the fourteenth amendment, section two states that
“when the right to vote at any election…is denied to any male inhabitants of such
state… or in any way abridged, except for participation in rebellion, or other
crime, the basis of the state’s representation in congress shall be reduced in the
proportion which the number of male citizens 21 years of age in such state,”
thus eliminating their basic human rights (Schrader, 2009, p. 1287). Although the
constitution states the disenfranchisement of convicted felons, “Justice Thomas indicated
that he would be open to reinterpreting the clause’s meaning in an ‘appropriate case’
concerning a fundamental right,” such as voting (Schrader, 2009, p. 1288).
Laws that deny felons voting privileges are a national commonality; however,
there are two states that permit those incarcerated the right to vote, and nine states “either
THE DISENFRANCHISEMENT OF CONVICTED FELONS
4
disenfranchise certain categories of ex offenders or permit those ex offenders to apply for
a restoration of voting rights after a waiting period” (Schrader, 2009, p. 1289). The two
states that allow felons to vote are Maine and Vermont, which have lower populations in
comparison to a state as big as Florida or Texas. The issue with altering what has been set
in stone in the Voting Rights act is that it could greatly impact future elections; however,
these laws disenfranchise over 5 million people in the U.S., which is a significant amount
of our population. In the current presidential race, a policy reform for disenfranchisement
is drawing up some controversy. If voting rights were to be completely restored to
convicted felons, it could give preference to the Democratic Party since a majority of
felons identify as “democrat,” which scares the Republicans (Bump, 2015).
It has been proven that disenfranchisement laws significantly impact elections. A
study done on the 2000 presidential election revealed that had convicted felons been able
to vote, Al Gore would have won the state of Florida by such a large amount that he
would have won the presidential election. Furthermore, without these laws there is
evidence that the parties holding power in the senate throughout the 1990’s could have
been dramatically different had laws regarding disenfranchisement been different
(Schrader, 2009, p. 1290). Disenfranchisement laws have been put in place because of the
Richardson v. Ramirez case after three individuals in California had completed their
sentence and parole and argued that they should be reissued the right to vote. On behalf
of themselves and others, they presented the court with a petition, but the “California
Supreme Court went on to hold that the constitutional and statutory provisions in
question, as applied to ex-felons whose sentences and paroles had expired, violated the
THE DISENFRANCHISEMENT OF CONVICTED FELONS
5
Equal Protection Clause of the Fourteenth Amendment, but did not issue the peremptory
writ” (JUSTIA U.S. Supreme Court, 2015).
Dawson-Edwards (2008) notes that “due to their original intent, collateral
consequences, such as felon voting restrictions, are still held to be civil in nature, but
increasing evidence shows that over time their results have become punitive,” insinuating
that disenfranchisement has become a steady punishment for felons (p.15). Furthermore,
Dawson-Edwards (2012) addresses the skepticism, posing the possibility that “due to the
diversity among state felon voting prohibition laws it may be time to examine how disenfranchisement should be used in conjunction with criminal sentencing” (p. 17).
Additionally, Dawson-Edwards (2008) points out that Americans tend to favor a variety
of punishment orientations, which would suggest that “recent legislative changes related
to felon disenfranchisement reflect a public who may believe in the rehabilitative effects
of criminal punishment” (p.18). Individuals tend to not hold “punitive views rigidly…
they will moderate these views if given a compelling reason to do so” (Dawson-Edwards,
2008, p.18). Aside from lawmakers, the American public tends to more so empathize
with criminals depending on the harshness of their crime, especially those convicted of
drug related charges since a significant amount of the population is involved in drug
usage. Uggen and Manza (2002) point out that “felon disenfranchisement constitutes a
growing impediment to universal political participation in the United States because of
the unusually severe state voting restrictions imposed upon felons and the rapid rise in
criminal punishment since the 1970’s” (p. 778) This threatens democratic governance
since the addition of felons into the voting process could radically change the outcome of
elections. Subsequently, the troubled state of democracy in America is characterized by
THE DISENFRANCHISEMENT OF CONVICTED FELONS
6
“low turnout rates, high levels of public apathy, poor information and citizen ignorance,
declining trust in the political system, candidate centered politics and voter dealignment,”
yet no attention is being paid to issues surrounding the right to vote faced by
disenfranchised felons (Uggen and Manza, 2002, p. 779). Racial minorities are greatly
overrepresented in the criminal justice system, and it is estimated that 1.8 million of the
4.7 million felons and ex- felons that have lost their right to vote are African Americans,
“principally composed of poor or working class offenders who are also likely to vote
democratic,” which also appears as racial targeting (Uggen and Manza, 2002, p. 780781).
Michael Cholbi (2002), argues that a reason for implementing disenfranchisement
is that it “denies criminals the right to participate politically in the creation of laws whose
legitimacy they do not respect anyway, and in this sense ‘fits’ the crime. Crime is a
political act that demands an explicitly political penalty” (p. 545). This draws upon the
common conception that by breaking a law, criminals should no longer deserve the
privilege of voting in the community. Advocates of felon disenfranchisement may argue
that criminals are a threat to the community and therefore do not deserve to have input in
societal rulings and decisions. They should not be able to participate in the creation of
laws since they have broken laws. However, not all crimes are threatening to the safety
of a society and, according to Cholbi, should be regarded with less strictness than harsher
crimes. Felon disenfranchisement seems counterintuitive since some felonies carry far
less weight than others, and those who have served their time may deserve a second
chance (Cholbi, 2002, 546). Furthermore, the point of criminal incarceration is to allow
people to serve their time and then reintegrate themselves into society after serving a
THE DISENFRANCHISEMENT OF CONVICTED FELONS
7
sentence of rehabilitation, yet it seems unattainable if they lose basic fundamental rights.
Cholbi (2002) argues that yes, there are political crimes that attack the “symbols of
democracy” but the majority of felonies are from petty attacks on property that are not
threatening and not politically harmful (p. 547). Losing the right to vote should be
dependent upon the type of crime committed, its threat to society, and its tie to political
harmfulness. Cholbi (2002) also states that it is wrong to assume a crime is political,
which therefore should not be regarded with the same reverence as a political crime and
should not “demand the revocation of a specifically political right such as the right to
vote” (p. 547). Nonetheless, “due to their original intent, collateral consequences, such as
felon voting restrictions, are still held to be civil in nature, but increasing evidence shows
that over time their results have become punitive,” with the war on drugs imprisoning a
significant amount of the population, especially African Americans (Dawson-Edwards,
2008, p. 17).
We must ask ourselves if it is right to continue to deprive released felons of the
right to vote if they have completed all aspects of their punishment. It seems obvious that
the right thing to do would be to offer felons a second chance with applications for
enfranchisement; however, the solution seems much more complex. Elections could be
drastically swayed—for better or for worse. Furthermore, since it has been proven that
minorities comprise the majority of those imprisoned, a closer look at disenfranchisement
laws has identified that “they lack people of color’s voices and perspectives, causing
scholars of color to question the intent and accuracy” of such laws (Spates and Mathis,
2014, p. 85). Several states have adopted the policy of offering voters restoration to exconvicts who have completed all repercussions of their offenses, so we must regard this
THE DISENFRANCHISEMENT OF CONVICTED FELONS
with the same reverence as any other infringement upon human rights. Voting is a
cornerstone of American democracy, so it cannot be expected of ex- felons to return to
society if they are not offered the chance of being refranchised.
8
THE DISENFRANCHISEMENT OF CONVICTED FELONS
9
References
Bump, P. (2015). Hillary Clinton wants to allow felons to vote. That could mean a lot in a
state like Florida. Retrieved December 4, 2015, from
https://www.washingtonpost.com/news/the-fix/wp/2015/05/19/hillary-clintonwants-to-allow-felons-to-vote-that-could-mean-a-lot-in-a-state-like-florida
Cholbi, M. (2002). A Felon’s Right to Vote. Retrieved November 15, 2015, from
http://download.springer.com/static/pdf/155/art%253A10.1023%252FA%253A10
20999424974.pdf?originUrl=http%3A%2F%2Flink.springer.com%2Farticle%2F
10.1023%2FA%3A1020999424974&token2=exp=1447729715~acl=%2Fstatic%
2Fpdf%2F155%2Fart%25253A10.1023%25252FA%25253A1020999424974.pdf
%3ForiginUrl%3Dhttp%253A%252F%252Flink.springer.com%252Farticle%252
F10.1023%252FA%253A1020999424974*~hmac=34a95d75a185a3a402da06df3
ef47786ef1a45a40bc28f600985ad7612ac15f8
Dawson-Edwards, C. (2008). Enfranchising Convicted Felons: Current Research on
Opinions Towards Felon Voting Rights. Journal Of Offender
Rehabilitation, 46(3/4), 13-29.
Historical Timeline - Felon Voting - ProCon.org. (n.d.). Retrieved November 17, 2015,
from http://felonvoting.procon.org/view.timeline.php?timelineID=000016
Introduction To Federal Voting Rights Laws. (2015, August 6). Retrieved November 15,
2015, from http://www.justice.gov/crt/introduction-federal-voting-rights-laws
THE DISENFRANCHISEMENT OF CONVICTED FELONS
10
References Cont.
Monk, L. (n.d.). Due Process Clause, Equal Protection Clause, and Disenfranchising
Felons. Retrieved November 17, 2015, from http://www.pbs.org/tpt/constitutionusa-peter-sagal/equality/due-process-equal-protection-and-disenfranchisement/
Richardson v. Ramirez 418 U.S. 24 (1974). (n.d.). Retrieved November 15, 2015, from
https://supreme.justia.com/cases/federal/us/418/24/
Schrader, J. B. (2009). Reawakening "privileges or immunities": An originalist blueprint
for invalidating state felon disenfranchisement laws. Vanderbilt Law
Review, 62(4), 1285-1314. Retrieved from
http://search.proquest.com/docview/198898055?accountid=14780
Spates, K., & Mathis, C. (2014). Preserving Dignity: Rethinking Voting Rights for U.S.
Prisoners, Lessons from South Africa. Journal Of Pan African Studies, 7(6), 84105.
Uggen, C., & Manza, J.. (2002). Democratic Contraction? Political Consequences of
Felon Disenfranchisement in the United States. American Sociological
Review, 67(6), 777–803. Retrieved from http://www.jstor.org/stable/3088
THE DISENFRANCHISEMENT OF CONVICTED FELONS
11