Punishing at the Polls: The Case Against Disenfranchising Citizens With Felony Convictions

Punishing at the Polls: The Case Against Disenfranchising Citizens With Felony Convictions

November 24, 2003
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Political scientist Alec Ewald sheds new light on the fundamentally undemocratic nature of felony disenfranchisement laws. Tracing the history of these laws from ancient Europe to their racist application in the post Civil War U.S., Ewald concludes that felony disenfranchisement laws are in profound conflict with America's best ideals of fairness and traditions of democracy.

Introduction
 
Prior to the Presidential election of 2000, laws barring criminals from voting had received only sporadic attention from legal scholars. George W. Bush won that election, of course, by virtue of a 537-vote margin in Florida. As the public soon learned, Florida's flawed attempt to purge convicted felons from voter rolls resulted in many non-felonious citizens being stricken from voting rolls.1 But criminal is enfranchisement also shaped the election in other ways. Florida's indefinite-disenfranchisement policy currently bars well over half a million non-incarcerated citizens from voting -- about a thousand times the margin by which Bush won the state.2
 
Nationally, almost 4.7 million U.S. adults are now barred from voting because of a criminal conviction, the majority of whom are not incarcerated, and well over a million of whom have completed their sentences entirely.3 In thirteen states, many criminal offenders are denied the vote even after they have completed their terms of incarceration, probation, and parole.4 The United States is the only democracy that indefinitely bars so many offenders from voting, and it may be the only country with such sweeping disenfranchisement policies.5 So many Americans are now disenfranchised that our overall voter-turnout figures are distorted, because a significant percentage of the voting-age population is not eligible to vote.6
 
These facts have spurred advocates to launch efforts at reform -- in statehouses, courthouses, the op-ed pages, and national and regional conferences examining felony disenfranchisement.7 Reformers depict the policy as an affront to voting rights, and an obstacle to successful rehabilitation of ex-offenders. Proponents of the policy, however, vigorously defend the laws. They point to the policy's long history in the U.S. and to public support for laws barring convicted felons from voting, and describe the practice as a useful way to punish offenders while protecting American elections from corruption.
 
Criminal disenfranchisement draws on deep traditions in American political thought. Those roots help explain why policies barring inmates from voting seem to make sense to the public today. But defenders and opponents of disenfranchisement approach the policy from vastly different political assumptions, and the quality of debate over the practice has suffered as a result. Drawing on history, law, and political philosophy, this report tries to improve public understanding of disenfranchisement by anchoring arguments for and against the policy in the central ideologies of American politics. Appreciating the ideological foundations of criminal disenfranchisement leads us to a powerful critique of the practice.
 
The best way to understand the disenfranchisement debate is to approach it from the perspective of two concepts that are influential in American political thought: liberal contractarianism and republicanism. The thinking of most Americans today combines both concepts, and the arguments of both critics and defenders of disenfranchisement draw on these roots.
 
Briefly, advocates of liberal-contractarianism think that society's rules are simply an agreement among independent individuals. The government should not tell its citizens how to be "virtuous" -- it should allow them as much leeway as possible to pursue happiness and the good life as they define it.
 
Proponents of republicanism do not agree with this. Instead, they emphasize that citizens should cultivate civic virtue -- a devotion toward the public good. Strong laws are important for persuading self-interested citizens to act virtuously.
 
These two concepts -- one drawing on individualism and the image of the social contract, the other on the importance of civic virtue -- have been essential to the development of criminal disenfranchisement in the U.S., but they cannot provide a full understanding of the practice. A third ideology that has defined many aspects of U.S. history -- belief in the superiority of the white race -- also shaped American disenfranchisement law, and we cannot understand the policy's impact today without considering its racial dimension.
 
Before we can debate whether or not criminal disenfranchisement is a good or a bad thing, however, we need to understand how these laws operate and where they came from.
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