Introduction

The 2000 United States Presidential election between George W. Bush and Al Gore saw Bush winning the Presidency by the smallest of margins. The election came down to Florida, where Bush won only 537 more votes than Gore. Whenever elections come down to such a close finish, questions of democratic legitimacy will always arise. Was election interference at play? Was there voter fraud? Were all votes counted correctly? Were some votes suppressed? One of the most used tools to affect voting in the United States is the practice of disenfranchising (revoking the right to vote) felons and incarcerated criminals. While the practice has roots in European and North American tradition, in recent context, disenfranchisement of criminals has perverted our democracy. The disenfranchisement of criminals serves no valuable purpose and instead has contributed to racial divides in the US, disproportionately affecting minority communities by silencing their voice. The simple remedy is to fully restore the voting rights of incarcerated individuals and ex-felons and provide easy access to voter registration services so that they can reenter the public sphere.

 

Where Did This Practice Come From?

Disenfranchisement was brought over to North America by English colonists as part of the tradition of “civic death”, which punished certain criminals by revoking their rights. “Civic death” grew from only revoking the right to vote for individuals who committed politically related crimes to all convicted felons. Disenfranchisement laws were enacted more frequently in the United States as the Civil War broke out, and property tests were being ruled unconstitutional. These developments opened the opportunity for disenfranchisement of criminals to be used as an alternative to the property test. 29 states adopted disenfranchisement laws by 1869, and during reconstruction, southern states began adopting disenfranchisement to specifically target black men and keep them from voting. As we approach modern times, the negative racial implications are still apparent.

 

In Recent Context

The history surrounding disenfranchisement as a punishment in the American justice system points to the practice becoming problematic in modern times. The “coincidence” of disenfranchisement being adopted in southern states as the Civil War broke out leads one to believe that disenfranchisement is a practice rooted in deepening racial divides. The racial proponent that is entrenched in the widespread practice has shown itself in recent years. As the prison population had increased from 1.17 million in 1976 to 6.1 million in 2016, we are seeing that minority communities are being disproportionately imprisoned and therefore are disproportionately having their right to vote taken away. Over 2 million African Americans are disenfranchised. That is 8 percent of adult African Americans that are unable to express themselves through the right to vote. As of 2016, in four states (Virginia, Kentucky, Tennessee, and Florida), one in five African Americans were banned from voting as a result of disenfranchisement laws. Just as the disenfranchisement of criminals can disrupt minority communities, it can also disrupt the results of our election. From 1970-1988, it is estimated that 7 US Senate races would have ended differently (in favor of democrats) had the voting rights of criminals been restored. The 2000 Presidential election could have very well gone the way of Al Gore had felons and the incarcerated been allowed to vote in the state of Florida. This only outlines how election results could have differed had felons been able to vote and doesn’t even begin to show the inherent issues with taking away the right to vote without due cause.

 

The Harm

To understand why disenfranchising criminals is counterproductive, it is important to understand the reasoning behind some forms of criminal punishment. Jail time, parole, fines, etc. are all aimed at providing a punishment to a crime that will either serve as (i) retribution, (ii) a deterrent, or (iii) rehabilitation. The forms of punishment used in our criminal justice system should aim at fulfilling at least one of these purposes. Disenfranchisement, however, serves none of these purposes.

Starting with retribution, this purpose aims at ensuring that the punishment applied is fitting of the action committed. A murderer should not be punished with a 50-dollar fine, and a person speeding should not be punished with 10 years in jail. So, when you look at any criminal in jail, is it fitting to take away their voting right? Unless the crime committed is especially heinous or related to political/electoral affairs, it does not seem as though revoking the right to vote is a fitting punishment in any way. Most criminal acts are not politically related or motivated, so it makes no sense to punish the individual by taking away their political rights.

Some may try to argue that losing the right to vote serves as a deterrent to criminal activity, the idea being that people will think twice about committing a crime because they are risking their right to vote. This logic does not hold up as it is not believable that possibly losing the right to vote will prevent any criminal from engaging in criminal activity. It is more likely that the more fitting punishments (like serving jail time or paying massive fines/legal fees) are the most effective ways to deter crime.

Lastly and most importantly, disenfranchisement does nothing to rehabilitate and better the individuals who commit criminal offenses. Instead, taking away their right to vote is counterintuitive and only further exiles them from the rest of society. If we trust criminals to be able to reenter society when they are released, we can trust them to vote responsibly. If we want to be able to provide the best conditions for the incarcerated to become more virtuous, we must be able to hear from the people who are living in jails. We cannot fix our criminal justice system and better the lives of ex-felons without letting them have an equal voice at the decision-making table.

 

Democratic Implications

It is not just problematic that disenfranchisement is being used as a punishment without advancing any rehabilitative, retributive, or deterrent purpose. As the prison population has grown exponentially in the last 40 years, the practice of disenfranchising criminals has revoked voting rights for a large portion of the population. A wide public sphere in democracy is key because if the people are to govern themselves, there needs to be as many members of society participating in political decision-making processes. We need to hear from the perspectives of as many citizens as possible if we are ever going to address the problems in different communities. By taking away the right to vote for incarcerated criminals, we are ignoring the viewpoints of the people who are the most familiar with our criminal justice system. We cannot reform prisons, police, and sentencing if we are not hearing from the people who are acquainted with those systems best.

Having looked at the context and history in which disenfranchisement rose to become a common practice in the United States, the racially discriminatory aspect of the practice is made apparent. When you look at the purposes that punishments should aim to fulfill, disenfranchisement does nothing to reform or better the criminal or society. Instead, disenfranchisement is a racist practice used to suppress voting in minority communities and in turn delegitimize our elections. Democracy holds values such as inclusion and equality very highly, and without justifying why we are taking away the right to vote for so many of our citizens, we are in turn delegitimizing our election process. Incarcerated criminals and ex-felons have as much of a right to vote as any other citizens, and revoking their political rights without due cause only creates a democratic conflict that can only be resolved by restoring their right to participate in elections.

 

Solutions

The solution to this problem is to remove the blanket around all 50 states preventing the incarcerated from voting. States are already gradually moving to restore the voting rights of felons who have served their prison sentences, but that is not enough. It is not satisfactory to restore ex-felon voting rights and stop before restoring the rights of the incarcerated. 48 out of the 50 states in the United States (Maine and Vermont are the two) unjustly prevent incarcerated persons from participating in voting. These are large constituencies in almost every state in the United States that have been stripped of their ability to have a say in the decisions in government. These states are guilty of weakening our democracy by violating the equality and rights of their citizens without due cause. The solution is simple. Restore these rights and ensure smooth incorporation back into civil society. That means increasing accessibility to voter registration from criminals by building programs that distribute information to incarcerated and ex-convicts. There needs to be an effort to make sure that states don’t hinder the ability to register to vote like Florida had tried last month when they attempted to force ex-criminals to pay all fines to the state before registering to vote. The barrier was ruled unconstitutional, and any similar barriers that could arise need to be challenged legally.

Disenfranchising criminals as a punishment arose in the United States as a way to continue to marginalize minority groups and keep them from voting. The punishment brings no value to the table and does not advance any constructive purpose. Rather, the practice has failed to deviate from its original purpose, as its disproportionate effect on the black community shows the inherent racial bias within it. A practice with such troubling societal and democratic implications needs to be universally recognized as wrong, and no state should engage in the practice. The entire United States should welcome our fellow incarcerated and convicted felons back into the public sphere, restoring their right to an equal say and allowing them to contribute valuable insights that will improve our society.

Disclaimer: The views and opinions expressed in this article are those of the author and/or student and do not necessarily reflect the official policy or position of United 4 Social Change Inc., its board members, or officers.
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