By Claudia Leonor
For violators of criminal law, the process of stigmatization begins with arrest and conviction.[1] Arrest and conviction create “a panoply of economic, social, and political post-conviction penalties . . . intended to assure that the shame of incarceration is not forgotten or avoided.”[2] A felony conviction, in particular, carries collateral civil consequences that condemn a criminal offender to a lifetime of second-class citizenship.[3] Convicted felons are postured towards permanent civic disenfranchisement: they lose the right to vote, suffer diminished employment prospects following release, and are disqualified from federal financial aid programs.[4]
The loss of voting rights is one such civil disability that endures long after a sentence has completed. The right to vote can be understood as a constellation of several different concepts: participation (“the ability to cast a ballot and have it counted”); aggregation (“the ability to join with like-minded voters to achieve the election of one’s preferred candidates”); and governance (“the ability to pursue policy preferences within the process of representative decision-making”).[5] Felon disenfranchisement laws operate within this constellation, diluting the ability of Black Americans to exercise their civic rights and to reintegrate into society following a term of incarceration.
Racial Disparities in Incarceration
Although the right to vote remains a threshold prerequisite for civic engagement, a significant number of Americans are prohibited from voting each year due to incarceration and felon disenfranchisement laws.[6] Racial disparities in incarceration are inextricably linked to the question of voting rights and felony disenfranchisement. Black Americans are imprisoned in state prisons at nearly five times the rate of white Americans.[7] The Reagan administration’s War on Drugs was the genesis of modern mass incarceration in the United States. Reagan increased funding for federal anti-drug investigation resources from $8 million to nearly $100 million.[8] As a result of the criminalization of non-violent drug offenses, the number of incarcerated persons between 1980 and 2000 exponentially increased from about 300,000 to more than two million.[9] While “white people are more likely than black people to sell drugs,” Black Americans are much more likely to be prosecuted and incarcerated for selling and possessing drugs.[10]
In the federal correctional system, Black inmates comprise approximately 40% of the incarcerated population.[11] Given the substantial population of Black Americans in the prison population, it follows that Black Americans are “nearly four times as likely to lose their voting rights than the rest of the adult population, with one of every 16 Black adults disenfranchised nationally.”[12] In fact, approximately 13% of all Black men in the country are disenfranchised by the laws.[13] In seven states—Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming—“more than one in seven Black adults are disenfranchised.”[14] In total, an estimated 1.8 million Black Americans are currently banned from voting due to felony disenfranchisement laws.[15]
The Civic Impact of a Felony Conviction
Restrictions on civic engagement deprive convicted felons of redemption and rehabilitation in the eyes of their community. Felon disenfranchisement laws operate as a collective sanction: “they penalize not only actual wrongdoers, but also the communities from which incarcerated prisoners come and the communities to which ex-offenders return by reducing their relative political clout.”[16] In fact, the collective sanction creates a “policy gridlock [that] . . . further[s] the affliction faced by urban minorities and their communities.”[17] On a microcosmic level, restrictions on the ex-felon’s right to vote “exclude and reduce the impact of difference that ex-felons would likely bring to the political debate;” indeed, ex-felons are likely to “decode” and elucidate experiences affecting judgment and decision-making that are unfamiliar to predominantly white audiences.[18] Felony offenders are diversez not only in “culture, religion, ethnicity, and class, but also in the experiences which led to each individual’s incarceration.”[19]
In absolutizing ex-felons to their status as “convicted felons” regardless of the crime of conviction, those who have committed relatively “moderate” crimes—such as non-violent crimes—erode an ex-felon’s already-tenuous connection to society and further complicate the rehabilitative journey.[20] Disenfranchisement laws deny ex-felons the opportunity to “build social capital for the individual and for the community” through participation in political avenues.[21] Because political participation is such a critical instrument of reconnecting to society, restrictions on a felony offender’s ability to exercise their right to vote further alienates them from their community.[22]According to sociologists Christopher Uggen and Jeff Manza, convicted felons often feel stigmatized by their felony conviction, and “losing the right to vote, in particular, was a powerful symbol of their status as ‘outsiders’” to their community.[23]
A Proposal for Felony Enfranchisement
Given the racialized dimensions of incarceration and felon disenfranchisement, there are serious concerns about the ability of minority citizens to “participate in the political process and elect candidates of their choice.”[24] Felon disempowerment is a cancer to urban communities, denying them the opportunity to support laws and policies that would affect their lives. And disempowerment further denies ex-felons the opportunity to elect officials who have their best interests in mind during the legislative process.
In contrast, enfranchisement—and broadly, empowerment of felons upon release from incarceration—permits ex-felons to re-imagine how law and policy should shape their communities. The idea of felon enfranchisement is closely linked to “empowerment theory,” which examines how individuals who possess fewer social resources attain societal power.[25] The political dimension of empowerment is particularly relevant to the study of felon enfranchisement, as it “refers to the ability to influence society and create community or larger scale social change.”[26] Instead of condemning convicted felons to a life plagued by civil disabilities, perhaps legislators could consider empowering those who have returned to the community to begin anew.
A federal statute that enfranchises convicted felons upon completion of federal supervision would permit an ex-felon to return to the community from which he left and would enable him to contribute to society in meaningful ways. The current state of felon disenfranchisement laws across states do not universally permit an ex-felon to do so. Effectively, these laws disempower and disenfranchise convicted felons upon their release from prison: once they have paid off their “debt” to society, they continue to do so—again and again. Disenfranchisement absolutizes felony offenders to a past crime and denies them the opportunity to redeem and vindicate themselves in the eyes of society. Federal legislation that would re-enfranchise felony offenders upon release from prison would encourage continued participation in civic life and help cultivate strong relationships with the communities from which offenders leave and return.[27]
Congressmen have begun to consider federal avenues of felony re-enfranchisement upon release from prison. Recognizing that disenfranchisement is “counterproductive to the rehabilitation and reintegration into society of those released from prison,”[28] legislators such as Senator Benjamin Cardin have proposed bills to restore the federal voting rights of convicted felons. Senator Cardin proposed Senate Bill (“SB”) 481, seeking to “secure the Federal voting rights of persons when released from incarceration.”[29] Cardin’s bill proposes automatic re-enfranchisement of persons released from a term of imprisonment to a term of community supervision; under his bill, Americans who have been released from prison and who are currently serving a term of probation or parole would be eligible to vote.[30] Currently, Cardin’s bill is still pending before the Committee on the Judiciary,[31] and has remained so since February 25, 2021. Even so, the fact that such an innovative piece of legislation is being considered is an important step towards making sure that every citizen has the right to participate in our democracy.
[1] Regina Austin, “The Shame of it All:” Stigma and the Political Disenfranchisement of Formerly Convicted and Incarcerated Persons, 36 Colum. Hum. Rts. L. Rev. 173, 175 (2004).
[2] Austin, supra note 1, at 176.
[3] James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. Rev. 21, 25 (2012).
[4] Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 2, Sent’g Proj. & Human Rights Watch (1998), https://www.opensocietyfoundations.org/publications/losing-vote-impact-felony-disenfranchisement-laws-united-states.
[5] Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1171 (2004).
[6] Erin Kelly, Do the Crime, Do the Time—and Then Some: Problems with Felon Disenfranchisement and Possible Solutions, 51 U. Tol. L. Rev. 389, 393 (2020) (citing Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1996)).
[7] Ashley Nellis, Ph.D., The Color of Justice: Racial and Ethnic Disparity in State Prisons, Sent’g Proj. (Oct. 13, 2021), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.
[8] Christina Beeler, Felony Disenfranchisement Laws: Paying and Re-Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071, 1077 (2019).
[9] Id.
[10] Id.
[11] “Inmate Race,” Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_race.jsp (last updated June 11, 2022)
[12] Jean Chung, “Voting Rights in the Era of Mass Incarceration: A Primer,” Sent’g Proj. (July 28, 2021), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/
[13] Jason Belmont Conn, Felon Disenfranchisement Laws: Partisan Politics in the Legislatures, 10 Mich. J. Race & L. 495, 497 (2005).
[14] Chung, supra note 12.
[15] Id.
[16] Karlan, supra note 5, at 1173.
[17] Marie Pryor, The Unintended Effects of Prisoner Reentry Policy and the Marginalization of Urban Communities, 34 Dialectical Anthropology 513, 515 (Dec. 2010).
[18] Anthony C. Thompson, Unlocking Democracy: Examining the Collateral Consequences of Mass Incarceration on Black Political Power, 54 How. L. J. 587, 606 (2011).
[19] Pryor, supra note 17, at 515.
[20] Karlan, supra note 5, at 1167.
[21] Thompson, supra note 18, at 606.
[22] Id.
[23] Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193, 197 (2004).
[24] Karlan, supra note 5, at 1171.
[25] Jennifer Fritz et al., Prisoner Re-entry: An Assets-based, Capacity Building Community Practice Pilot Program, 5 Int’l J. of Interdisciplinary Soc. Sciences 579, 581 (2010), http://www.SocialSciences-Journal.com.
[26] Id. at 582.
[27] Democracy, supra, note 29.
[28] Deborah J. Vagins & Erika Wood, The Democracy Restoration Act: Addressing A Centuries-Old Injustice 3, Am. Const. Soc’y (2010), https://www.acslaw.org/wp-content/uploads/2018/04/ACS-Issue-Brief-Vagins-and-Wood.pdf.
[29] https://www.congress.gov/bill/117th-congress/senate-bill/481/text.
[30] Democracy Restoration Act, Brennan Ctr. for Just. (Aug. 8, 2019), https://www.brennancenter.org/our-work/policy-solutions/democracy-restoration-act (last updated Jan. 1, 2022).
[31] https://www.congress.gov/bill/117th-congress/senate-bill/481/all-actions?r=3&overview=closed&s=1#tabs.