Abstract
Today, 5.2 million Americans are kept from voting because of felony disenfranchisement laws. African Americans are disproportionately affected by these laws. There has been a wave of reforms in recent years, restoring the right to vote to formerly disenfranchised persons. This Essay discusses the reasons the franchise should be expanded, both because it leads to lower recidivism rates and because people who have been convicted of felonies are interested in being active citizens and engaging on issues they care about.
I. Voter Disenfranchisement: A Historical Perspective
From an Incarcerated American
Although the right to vote is not guaranteed in the U.S. Constitution, in 1964, the U.S. Supreme Court recognized that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”[1] The Wesberry v. Sanders decision reinforced a fundamental tenet of democracies—every citizen counts. Nevertheless, with the exception of Maine, Vermont, and the District of Columbia, every U.S. state has legislated felony disenfranchisement laws.[2] Felony disenfranchisement has been rationalized from the Thirteenth Amendment’s exception to authorize slavery “as punishment for crime whereof the party shall have been duly convicted.”[3] State lawmakers follow a seemingly logical course—felons cannot vote because they are being punished as slaves.[4] The result is that about 5.2 million Americans are sidelined during elections.[5] It should be noted that 76 percent of disenfranchised voters live in their communities, either under probation or parole supervision.[6] And since African Americans typically serve longer sentences and serve more time on parole than their white counterparts, African Americans are legally disenfranchised for a longer period of time.[7] The data expose the stark racial disparities caused by systemic racism: African Americans make up 12 percent of the U.S. population, but are 36 percent of the disenfranchised.[8] Many states instituted felon disenfranchisement laws in the wake of the Civil War, and by 1869, twenty-nine states had enacted such laws.[9] Today, African Americans are four times more likely to lose their voting rights than the rest of the adult population, with one out of every thirteen African American adults disenfranchised nationally, adding up to 2.2 million African Americans banned from voting.[10] Moreover, collateral consequences intensify the effect of systemic racism, as felony convictions also restrict people from obtaining some occupational licenses and government-backed education loans.[11] Felony convictions prevent some people from living in publicly funded housing, and many homeowner association bylaws have restrictions against owning or even renting a home in certain areas until rights have been restored.[12]
“While it is debatable whether felony disenfranchisement laws today are intended to reduce the political clout of communities of color,”[13] the effect shows systemic racism in operation in the law. Its collateral consequences hinder a disproportionate number of African Americans’ integration into society and create a psychological hurdle that stands in the way of efforts to reduce recidivism.[14] In a study by the Florida Parole Commission in 2011, only 11.1 percent of individuals who had their civil rights restored during the calendar years of 2009 and 2010 reoffended and were forced to return to incarceration or community supervision.[15] The overall recidivism rate for returning citizens released from 2001 to 2008, on the other hand, was 33.1 percent.[16] According to the Florida Department of Corrections, the average three-year recidivism rate for persons with a felony conviction released in 2012 under the clemency system then in place was 25.2 percent.[17] The three-year recidivism rate for persons with a felony conviction released in 2009 who had their voting and other civil rights restored under the previous clemency system, however, was only 12.4 percent.[18]
As civil rights activist and author Desmond Meade said, “[o]ut of all the rights stripped from men and women returning to society after serving time in prison, voting is really the only one that says I am a citizen of this country, and my voice does matter.”[19]
***
It has been 156 years since the Thirteenth Amendment was ratified and gave forty-eight of the fifty states legal ways to limit the vote of U.S. citizens.[20] But as Americans leave the challenges of 2020 behind and come to terms with the realities of racial injustice, a global pandemic, and climate change, there is a clarity to the morally indefensible nature of voter disenfranchisement. And there is hope, as reform measures against these anti-democratic laws are restoring voting rights to returning citizens.
In 2016, Virginia restored voting rights to approximately 173,000 people when Governor McAuliffe issued an executive order to grant partial clemency to people released from prison. In 2017, Alabama restored voting rights to approximately 76,000 people by legally establishing a list of felonies that result in the loss of voting rights. In 2018, Louisiana restored voting rights to approximately 43,000 people by passing a law that allows people who have not been incarcerated in the last five years to be able to vote.[21] In 2018, voting rights were restored to approximately 35,000 people in New York when Governor Cuomo issued an executive order to restore the right to vote to people on parole.[22] In 2018, Florida restored voting rights to approximately 1.4 million returning citizens after voters passed a law that allows people with felony convictions to vote, excluding those convicted of murder and felony sex offenses.[23] In May 2020, Nevada’s governor signed a bill that automatically restores voting rights for returning citizens.[24] Lawmakers are still considering similar reenfranchisement laws in Connecticut, New Jersey, and Nebraska. Some fifteen states automatically restore voting rights to returning citizens, but several others—including Alabama and Mississippi—ban some citizens from voting for life.[25] Since 1997, ten states either repealed or amended lifetime disenfranchisement laws, nine states expanded voting rights to some or all persons on probation or parole, thirteen states eased the restoration process for returning citizens, and three states improved data and information sharing. From these combined efforts, nearly one million Americans have regained the right to vote.[26] In November 2020, California passed Proposition 17, which gives people on parole or probation the right to vote. Still, only a few thousand of the 2.3 million currently incarcerated Americans can vote.
II. The Act of Democracy: Disenfranchised Californians
Speak Out
“I want to be heard,” one man wrote on the back of a makeshift ballot in the 2020 San Quentin State Prison mock election. Another man wrote on his ballot that he was voting because “I’d like to feel like a citizen; feel like I am important, too.”[27] Democracy Now! producer, Libby Rainey, was a college student when she volunteered to assist San Quentin News in the 2016 Trump/Clinton mock election. “Most incredible were the conversations, which were so insightful,” Rainey recalled. “Even though no person I talked to could vote, they cared and were engaged in policy discussions happening in the outside world. It was infuriating that those votes couldn’t count. The election was consequential and the people who were disenfranchised could have swayed the election—that involved many Black people.”[28]
California prisoners are disenfranchised from voting, which “seems likely to exacerbate feelings of marginalization and alienation”[29] and hinders reintegration of returning citizens into society. James King, a formerly incarcerated person, now works as the State Campaigner for the Ella Baker Center for Human Rights. As King explains:
So called criminal behavior is often fueled by feelings of alienation. Restoring a person’s right to vote directly counters those feelings and leads to public safety in a very real way. When people have a say in the policies they are impacted by, it lets them know they belong, and gives them a positive mechanism for bringing the resources they need to live happy, healthy lives into their daily existence.[30]
Felony disenfranchisement fails to recognize that a criminal conviction does not take away American citizenship. San Quentin’s mock election reflects prisoners’ desire to be active citizens and have a say in societal governance—a sentiment not isolated to San Quentin. Senator Raphael Warnock recently spoke on the importance of this: “Ours is a land where possibility is born of democracy: a vote, a voice, a chance to help determine the direction of the country and one’s own destiny within it—possibility born of democracy.”[31]
In a survey sent to more than 4,000 people impacted by the criminal justice system, respondents said they want the chance to vote and are concerned about healthcare, education, and building a more just criminal justice system.[32] The survey reported that even though only 37 percent of respondents voted before incarceration, 98 percent said they would vote now.[33]
Other significant findings include the fact that 95 percent of system-impacted individuals wanted to have a voice in their community. Ninety-three percent wanted to make positive contributions to society and have a say in elected leadership.[34]
The top three political issues that people in prison and on parole listed as “very important” included jobs and economy (94 percent), education (94 percent), and healthcare (92 percent).[35] Ninety-one percent said that reducing crime and improving public safety are “very important,” and believe that the top three conditions that would have prevented their incarceration are fairer laws (75 percent), other supportive services, such as mentoring and mental health treatment (66 percent), and fairer treatment by law enforcement (65 percent).[36]
Granting all citizens the franchise should not be seen as a partisan issue. Those who are prevented from exercising their rights as full citizens hold diverse views and party preferences: Of the more than 4,000 incarcerated people surveyed in 2019, 47 percent identified as Democrat, 23 percent as having no party preference, 11 percent as Republican, and 19 percent indicated other party or did not respond.[37] What they do share is the desire to participate, hold their leaders accountable, and make their voices heard on issues like criminal justice reform, of which they have firsthand knowledge. Adamu Chan spent almost five years incarcerated at San Quentin. He was released during the pandemic. He now advocates for criminal justice reform in Oakland, California. “One of the key issues facing democratic institutions is how to equitably weight the voices of all of its members,” said Chan. “This is not only an ethical issue, but also vital to the functioning of those institutions—those who are historically marginalized know the faultlines and blindspots, because they have existed in them. They know what’s wrong with systems and they have developed the strategies to survive that marginalization. This is vital information and perspective that any healthy society needs.”[38]
[1]. Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
[2]. Felony Disenfranchisement Laws in the United States, Sent’g Project (Apr. 28, 2014), https://www.sentencingproject.org/publications/felony-disenfranchisement-laws-in-the-united-states [https://perma.cc/5YJY-PFZ8]; Martin Austermuhle, D.C. Clears the Way for Incarcerated Felons to Vote, Joining Only Two States That Allow It, DCist (July 9, 2020), https://dcist.com/story/20/07/09/dc-incarcerated-felons-vote-voting-rights [https://perma.cc/JS5R-JM7F]. Although in recent years some states have enacted new policies to curtail felony disenfranchisement, Maine, Vermont, and D.C. still remain the only three jurisdictions that allow incarcerated persons to vote. See Chris Uggen, Ryan Larson, Sarah Shannon & Arleth Pulido-Nava, Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction, Sent’g Project (Oct. 30, 2020), https://www.sentencingproject.org/publications/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction [https://perma.cc/LG2N-SL8U].
[3]. U.S. Const. amend. XIII.
[4]. See Juan Moreno Haines, Editorial, Voting Rights for the Incarcerated, 8 Hastings Race & Poverty L.J. 105, 105–06 (2011).
[5]. Uggen et al., supra note 2.
[6]. Id.
[7]. See id.
[8]. Reuven (Ruvi) Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives, 29 B.U. Int’l L.J. 197, 219 (2011).
[9]. Jean Chung, Felony Disenfranchisement: A Primer, Sent’g Project (June 27, 2019), https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer [https://perma.cc/EGS7-677J].
[10]. See id.
[11]. See Chidi Umez & Rebecca Pirius, Nat’l Conf. of State Legislatures, Barriers to Work: Improving Employment in Licensed Occupations for Individuals With Criminal Records (2018), https://www.ncsl.org/Portals/1/Documents/Labor/Licensing/criminalRecords_v06_web.pdf [https://perma.cc/GBX4-Z3JY]; Sarah B. Berson, Beyond the Sentence—Understanding Collateral Consequences, Nat’l Inst. Just., Sept. 2013, at 25, 25. Moreover, the unemployment rate for formerly incarcerated people is almost five times higher than that of the general U.S. population; for formerly incarcerated people who are African American or Latinx, their employment chances are even lower. Lucius Couloute & Daniel Kopf, Out of Prison and Out of Work: Unemployment Among Formerly Incarcerated People, Prison Pol’y Initiative (July 2018), https://www.prisonpolicy.org/reports/outofwork.html [https://perma.cc/A5PY-T7GQ] (“Formerly incarcerated Black women in particular experience severe levels of unemployment, whereas white men experience the lowest.”).
[12]. See Taina Vargas-Edmond, Gregory Fidell, Lisa Schottenfeld & Sash Feldstein, Initiate Just., The Urgency of Ending Felony Disenfranchisement in California (2019), https://www.initiatejustice.org/wp-content/uploads/2019/03/Democracy-Needs-Everyone-Report-Initiate-Justice.pdf [https://perma.cc/ZVD8-U2B9].
[13]. Chung, supra note 9; see also Juan Moreno Haines & Kevin Deroi Sawyer, We Can’t Vote in San Quentin Prison, So We Held a Mock Election, Guardian (Oct. 20, 2020), https://www.theguardian.com/us-news/2020/oct/28/san-quentin-prison-covid-19-incarceration-vote [https://perma.cc/65E6-EJAA].
[14]. See Uggen et al., supra note 2.
[15]. David M. Reutter, Florida Reports Indicate Restoration of Civil Rights Reduces Recidivism, Prison Legal News (Aug. 15, 2012), https://www.prisonlegalnews.org/news/2012/aug/15/florida-reports-indicate-restoration-of-civil-rights-reduces-recidivism [https://perma.cc/SL7C-MXHD].
[16]. Id.
[17]. Off. of Strategy Initiatives, Fla. Dep’t of Corr., Florida Prison Recidivism Report: Releases From 2012 to 2017, at 2 (2019), http://www.dc.state.fl.us/pub/recidivism/RecidivismReport2019.pdf [https://perma.cc/84GM-96TD].
[18]. Robert Steinback, Advocates Taking Action to Restore Voting Rights to Rehabilitated Ex-Felons, Sun Sentinel (Nov. 13, 2014), https://www.sun-sentinel.com/opinion/commentary/fl-rlscol-steinback-felon-voting-rights-20141113-column.html [https://perma.cc/D2V3-8Q9F]. Jean Chung of The Sentencing Project notes a similar pattern in recidivism rates for formerly incarcerated people who had voting rights restored compared to those who did not:
The revocation of voting rights compounds the isolation of formerly incarcerated individuals from their communities, and civic participation has been linked with lower recidivism rates. In one study, among individuals who had been arrested previously, 27 percent of non-voters were rearrested, compared with 12 percent of voters.
Chung, supra note 9 (citing Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence From a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193 (2004)).
[19]. Desmond Meade, Let My People Vote: My Battle to Restore the Civil Rights of Returning Citizens, at xi (2020).
[20]. The Senate Passes the Thirteenth Amendment, U.S. Senate, https://www.senate.gov/artandhistory/history/minute/Senate_Passes_the_Thirteenth_Amendment.htm [https://perma.cc/7CS4-JDYZ].
[21]. Vargas-Edmond et al., supra note 12, at 12.
[22]. Id.
[23]. Id.
[24]. Justin Wise, Nevada Governor Signs Bill to Restore Voting Rights to Convicted Felons, Hill (May 30, 2019, 12:34 PM), https://thehill.com/homenews/state-watch/446157-nevada-governor-signs-bill-to-restore-voting-rights-to-convicted-felons [https://perma.cc/4XG6-X8HW].
[25]. See Chung, supra note 9.
[26]. Id.
[27]. Haines & Sawyer, supra note 13.
[28]. Telephone Interview with Libby Rainey, Producer, Democracy Now! (Mar. 16, 2021).
[29]. Ziegler, supra note 8, at 208.
[30]. Email from James King, State Campaigner, Ella Baker Ctr. for Hum. Rts., to Maya Chaudhuri, Chief Exec. Editor, UCLA L. Rev. (Feb. 1, 2021, 12:14 PM PST) (on file with UCLA Law Review).
[31]. 167 Cong. Rec. S1,583 (daily ed. Mar. 17, 2021) (statement of Sen. Raphael Warnock).
[32]. Vargas-Edmond et al., supra note 12, at 4–5.
[33]. Id. at 5.
[34]. Id.
[35]. Id. at 6.
[36]. Id.
[37]. Id.
[38]. Email from Adamu Chan, to Maya Chaudhuri, Chief Exec. Editor, UCLA L. Rev. (Feb. 10, 2021, 11:34 AM PST) (on file with UCLA Law Review).
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