Justice Miscarried
People make mistakes. They often face consequences for those mistakes. Sometimes, they forfeit some of their rights for a time — most notably, their freedom. And sometimes, they don’t get all of those rights back. Most felons in this country lose their right to vote when they are incarcerated. Many of them, after finishing their sentences and completing their parole and probation requirements, can’t have those rights reinstated. Given its racist roots and utilization, and its ineffectiveness at rehabilitating or deterring criminals, the disenfranchisement of ex-felons beyond their sentences is an injustice that should be righted.
To understand the injustice, one must first understand the status quo. The laws regarding felony disenfranchisement vary from state to state. Currently two states, Maine and Vermont, do not restrict a felon’s right to vote even while they are in prison. As long as they meet the requirements like age and residency, they can vote. The other forty-eight vary from “automatic restoration after release” to restoration only by pardon in some instances. And the situation is always in flux. Florida voters, for example, passed a constitutional amendment in 2018 that changed their felony disenfranchisement laws. Previously, Florida had been among the most restrictive states in the country. Now, most felons are automatically re-enfranchised as soon as they finish the entirety of their sentence. This policy affects a surprising number of people. In November of 2018, it was estimated that felony disenfranchisement kept 6.1 million Americans from voting. Perhaps that number should not be so surprising, since one can be charged with a felony for possessing as little as half an ounce of marijuana. It’s partly because of this, that Desmond Meade has coordinated opposition to these laws from groups as diverse as the ACLU and the Christian Coalition. In his words, “[w]hen a debt is paid, it’s paid…. We don’t care how you might vote or whether you vote at all, but every American citizen deserves that opportunity to at least earn the eligibility to vote again."
One of the biggest objections to felony disenfranchisement is its racial history and implications. Felony disenfranchisement laws gained popularity in one of the darker chapters of this country’s history. During Reconstruction, after the Civil War, many states adopted these laws and other laws they thought would cause the disenfranchisement of African Americans. Supporters of the policy deny that it is racist at all. In fact, Roger Clegg, who has served in the US Justice Department multiple times, posits that laws like these “may have a disproportionate impact on some racial groups, because at any point in time there are always going to be some groups that statistically commit more crimes than others, but that doesn’t make the laws racist." In Washington v Davis, the Court observed that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be true, that the law bears more heavily on one race than another." Consider that despite similar or even lower rates of use, African Americans are vastly more likely to be arrested for illegal drugs than whites. It is also true that, as Dr. Fosten notes, “[i]n contemporary United States today, it is completely legal to discriminate against convicted felons in just about all the ways that it was once previously legal to discriminate against African Americans." Further, it cannot be coincidence that the more African Americans reside in a state, the more restrictive their felony disenfranchisement laws are likely to be. The totality of these relevant facts add up to a fairly obvious inference.
With the racist baggage that comes with these laws, one might wonder: why disenfranchise felons at all? The purpose of any punitive measure is divided into a few different facets. Some measures serve to rehabilitate the criminal; some to deter crime. Rehabilitation is about functional reintegration into society — imparting mindsets and skillsets to make the individual capable of contributing when he or she finishes his or her sentence. Obviously, there is no rehabilitative function to disenfranchisement. On the contrary, it removes one of the ways that an individual contributes.
Removing rehabilitation as a possible intent leaves deterrence. Deterrence can be divided into two different types. A specific deterrence is one which dissuades a specific individual from committing crime. This is a kind of punishment designed to keep a criminal from reoffending. Suspending driving privileges after a DUI conviction is an example of a specific deterrence. Indefinite loss of one’s voting rights cannot possibly be a specific deterrent. The right continues to be unavailable and cannot be further removed. General deterrence, on the other hand, does not focus on a specific individual. It, in a sense, has nothing to do with the criminal being punished at all. A general deterrence is one which dissuades the populace as a whole from committing a crime. An individual drives within the speed limit because the police and/or courts will levy a fine for that infraction. This is a general deterrence. This, then, is the possible objective for disenfranchisement: the threat of that punishment may deter the populace from offending.
However, there are a few problems with using disenfranchisement as a deterrent. The first problem with it is that it is not a widely known consequence. In a 2009 study, Bryan Lee Miller of Georgia Southern University’s Department of Criminal Justice and Criminology interviewed 54 ex-felons. He and Laura E. Agnich found that “the majority of ex-offenders did not know about their loss of voting rights until after the commission of their offense." As a matter of fact, four of them tried to register to vote because they didn’t realize, even then, that they were ineligible. Miller specifically notes the relative obscurity of the loss of rights “[decreases] their value as a general deterrent."
Another snag is in the way it actually hinders rehabilitation. Typically, part of a felon’s sentence is a period of parole or probation. The purpose of this time is to ease the transition from highly-supervised prison life to completely unsupervised “normal” life. Ex-convicts must relearn how to set their own expectations and routines to function in a free society. After finishing that process, they are labeled once again normal citizens. But, with this policy, they are not fully citizens. Gerald Fosten, a Doctor in Political Science describes them as “[living] a caste-like underclass and super-underclass existence” due to being “locked out from fully participating” socially and politically. This becomes intuitive if one examines the theory behind punishment and sanctions. The effectiveness of a punishment varies based on a couple of factors: whether the punished considers it fair, and his or her connection with the community. The biggest hurdle to integration with a community is the label of “other.” When an ex-prisoner is denied access to jobs, housing, educational opportunities, that label is applied and reinforced. When he or she is further denied access to the ballot box, it is even further reinforced. Those social bonds that connect individual with community are weakened even before they can be established. Clegg asserts that “two out of three felons who are released from prison commit another crime, and it is ridiculous to assert that the reason they do so is that they can’t vote." But a lack of a sense of belonging to the community — the feeling that they are “other” — combined with feeling unfairly punished increases, rather than decreases, the likelihood that an ex-felon will reoffend.
Despite these objections, felony disenfranchisement laws still find support. In fact, US courts have held that disenfranchisement is not a punishment at all, but merely a regulation of eligible voters. However, Judge Wingate called it “the harshest civil sanction imposed by a democratic society." Typically, defenders of felony disenfranchisement laws simply say that ex-convicts just don’t deserve the vote and group them with other residents of the country that are not allowed to do so: non-citizens, the mentally incompetent, and children. The latter two categories are individuals assessed as incapable of self-sufficience. Non-citizens are not allowed to participate in government because they are not represented by it — they presumably have loyalties to other nations. But ex-felons are citizens; they are represented by various levels of government. To deny them a voice in choosing it is contrary to the most basic tenets of a representative democracy. Also, as Fosten points out, felons tend to be “politically informed and engaged." Finally, supporters like Michael Mukasey contend that a felony conviction imbues a “taint that should require that one at least show some brief period of law-abiding existence before full readmission to the polity," which, of course, ignores parole and probation: periods of supervised, law-abiding existence.
Felony disenfranchisement laws are racist. They cannot rehabilitate and do not deter crime. People make bad decisions, and should be punished accordingly, but courts should administer justice, not injustice. It is far past time for this injustice to be righted.
To understand the injustice, one must first understand the status quo. The laws regarding felony disenfranchisement vary from state to state. Currently two states, Maine and Vermont, do not restrict a felon’s right to vote even while they are in prison. As long as they meet the requirements like age and residency, they can vote. The other forty-eight vary from “automatic restoration after release” to restoration only by pardon in some instances. And the situation is always in flux. Florida voters, for example, passed a constitutional amendment in 2018 that changed their felony disenfranchisement laws. Previously, Florida had been among the most restrictive states in the country. Now, most felons are automatically re-enfranchised as soon as they finish the entirety of their sentence. This policy affects a surprising number of people. In November of 2018, it was estimated that felony disenfranchisement kept 6.1 million Americans from voting. Perhaps that number should not be so surprising, since one can be charged with a felony for possessing as little as half an ounce of marijuana. It’s partly because of this, that Desmond Meade has coordinated opposition to these laws from groups as diverse as the ACLU and the Christian Coalition. In his words, “[w]hen a debt is paid, it’s paid…. We don’t care how you might vote or whether you vote at all, but every American citizen deserves that opportunity to at least earn the eligibility to vote again."
One of the biggest objections to felony disenfranchisement is its racial history and implications. Felony disenfranchisement laws gained popularity in one of the darker chapters of this country’s history. During Reconstruction, after the Civil War, many states adopted these laws and other laws they thought would cause the disenfranchisement of African Americans. Supporters of the policy deny that it is racist at all. In fact, Roger Clegg, who has served in the US Justice Department multiple times, posits that laws like these “may have a disproportionate impact on some racial groups, because at any point in time there are always going to be some groups that statistically commit more crimes than others, but that doesn’t make the laws racist." In Washington v Davis, the Court observed that “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it be true, that the law bears more heavily on one race than another." Consider that despite similar or even lower rates of use, African Americans are vastly more likely to be arrested for illegal drugs than whites. It is also true that, as Dr. Fosten notes, “[i]n contemporary United States today, it is completely legal to discriminate against convicted felons in just about all the ways that it was once previously legal to discriminate against African Americans." Further, it cannot be coincidence that the more African Americans reside in a state, the more restrictive their felony disenfranchisement laws are likely to be. The totality of these relevant facts add up to a fairly obvious inference.
With the racist baggage that comes with these laws, one might wonder: why disenfranchise felons at all? The purpose of any punitive measure is divided into a few different facets. Some measures serve to rehabilitate the criminal; some to deter crime. Rehabilitation is about functional reintegration into society — imparting mindsets and skillsets to make the individual capable of contributing when he or she finishes his or her sentence. Obviously, there is no rehabilitative function to disenfranchisement. On the contrary, it removes one of the ways that an individual contributes.
Removing rehabilitation as a possible intent leaves deterrence. Deterrence can be divided into two different types. A specific deterrence is one which dissuades a specific individual from committing crime. This is a kind of punishment designed to keep a criminal from reoffending. Suspending driving privileges after a DUI conviction is an example of a specific deterrence. Indefinite loss of one’s voting rights cannot possibly be a specific deterrent. The right continues to be unavailable and cannot be further removed. General deterrence, on the other hand, does not focus on a specific individual. It, in a sense, has nothing to do with the criminal being punished at all. A general deterrence is one which dissuades the populace as a whole from committing a crime. An individual drives within the speed limit because the police and/or courts will levy a fine for that infraction. This is a general deterrence. This, then, is the possible objective for disenfranchisement: the threat of that punishment may deter the populace from offending.
However, there are a few problems with using disenfranchisement as a deterrent. The first problem with it is that it is not a widely known consequence. In a 2009 study, Bryan Lee Miller of Georgia Southern University’s Department of Criminal Justice and Criminology interviewed 54 ex-felons. He and Laura E. Agnich found that “the majority of ex-offenders did not know about their loss of voting rights until after the commission of their offense." As a matter of fact, four of them tried to register to vote because they didn’t realize, even then, that they were ineligible. Miller specifically notes the relative obscurity of the loss of rights “[decreases] their value as a general deterrent."
Another snag is in the way it actually hinders rehabilitation. Typically, part of a felon’s sentence is a period of parole or probation. The purpose of this time is to ease the transition from highly-supervised prison life to completely unsupervised “normal” life. Ex-convicts must relearn how to set their own expectations and routines to function in a free society. After finishing that process, they are labeled once again normal citizens. But, with this policy, they are not fully citizens. Gerald Fosten, a Doctor in Political Science describes them as “[living] a caste-like underclass and super-underclass existence” due to being “locked out from fully participating” socially and politically. This becomes intuitive if one examines the theory behind punishment and sanctions. The effectiveness of a punishment varies based on a couple of factors: whether the punished considers it fair, and his or her connection with the community. The biggest hurdle to integration with a community is the label of “other.” When an ex-prisoner is denied access to jobs, housing, educational opportunities, that label is applied and reinforced. When he or she is further denied access to the ballot box, it is even further reinforced. Those social bonds that connect individual with community are weakened even before they can be established. Clegg asserts that “two out of three felons who are released from prison commit another crime, and it is ridiculous to assert that the reason they do so is that they can’t vote." But a lack of a sense of belonging to the community — the feeling that they are “other” — combined with feeling unfairly punished increases, rather than decreases, the likelihood that an ex-felon will reoffend.
Despite these objections, felony disenfranchisement laws still find support. In fact, US courts have held that disenfranchisement is not a punishment at all, but merely a regulation of eligible voters. However, Judge Wingate called it “the harshest civil sanction imposed by a democratic society." Typically, defenders of felony disenfranchisement laws simply say that ex-convicts just don’t deserve the vote and group them with other residents of the country that are not allowed to do so: non-citizens, the mentally incompetent, and children. The latter two categories are individuals assessed as incapable of self-sufficience. Non-citizens are not allowed to participate in government because they are not represented by it — they presumably have loyalties to other nations. But ex-felons are citizens; they are represented by various levels of government. To deny them a voice in choosing it is contrary to the most basic tenets of a representative democracy. Also, as Fosten points out, felons tend to be “politically informed and engaged." Finally, supporters like Michael Mukasey contend that a felony conviction imbues a “taint that should require that one at least show some brief period of law-abiding existence before full readmission to the polity," which, of course, ignores parole and probation: periods of supervised, law-abiding existence.
Felony disenfranchisement laws are racist. They cannot rehabilitate and do not deter crime. People make bad decisions, and should be punished accordingly, but courts should administer justice, not injustice. It is far past time for this injustice to be righted.
Labels: Essays
posted by Beav @ 8:33 AM
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