Felon Disenfranchisement

J Eagle Shutt & Gennaro F Vito. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.

In general usage, the term felon disenfranchisement refers to the restriction of voting rights for convicted felons. Broadly speaking, felon disenfranchisement is a part of a larger category of collateral civil consequences, both formal and informal, that affect the status of convicted offenders, including residential restrictions, gun ownership bans, financial benefit exclusions, lost employment opportunities, decreased status, and social stigma (LaFollette, 2005; see Uggen, Manza, & Thompson, 2006, p. 297). A felon is an individual convicted of an offense that typically carries a maximum penalty of at least 1 year in jail. Although almost all (48 out of 50) American states have felon disenfranchisement laws, these policies have become increasingly controversial in terms of their impact on elections. For example, Manza and Uggen (2006, p. 191) estimated that the exclusion of felons from voting provided “a small but clear advantage to Republican candidates in every presidential and senatorial election from 1972 to 2000” (p. 194). Specifically, they asserted that Democratic candidates would likely have prevailed in Texas (1978), Kentucky (1984 and 1992), Florida (1988 and 2004), and Georgia (1992; Uggen & Manza, 2006).

Proponents of felon disenfranchisement argue that such policies serve deterrence, retribution, and efficiency rationales (i.e., they deter future crime, punish offenders by excluding them from community political participation on moral grounds, and are necessary to ensure the proper functioning of democratic institutions). Critics, however, contend that felon disenfranchisement does not deter crime; undermines postconviction integration into society; originates from racial discrimination; and disproportionately excludes particular demographic segments, such as African American males, from political participation.

Because felon disenfranchisement affects the civil rights of nearly 5 million voters (over 2% of the eligible voters), critically evaluating its rationales remains a significant criminal justice policy issue (Manza & Uggen, 2004). Compounding the problem is America’s unprecedented incarceration binge over the last quarter century, wherein prison populations quadrupled from 500,000 to 2,000,000 (Currie, 1998; Richards, Austin, & Jones, 2004). This chapter first traces felon disenfranchisement’s history to its modern forms and reviews its current legal status. Then rationales for and against felon disenfranchisement are presented and evaluated in light of criminology and criminal justice research. The chapter concludes with sociology of law explanations for felon disenfranchisement and American trends therein.

History

As a practice, felon disenfranchisement has ancient roots (“The Disenfranchisement of Ex-Felons,” 1989; JohnsonParris, 2003; Manza & Uggen, 2004). In ancient Greece, offenders pronounced “infamous” were ineligible to vote, appear in court, attend assemblies, or serve in the military. In ancient Rome, infamous Romans lost suffrage and military service rights. In Anglo-Saxon England, outlawed offenders lost all rights to legal protection for life and property. In post-Norman England, “attainted” offenders—those convicted without trial by the legislature under bills of attainder—lost their civil rights to own property. The English-derived felon disenfranchisement tradition is based on the feudal doctrine of corruption of the blood, a legal fiction wherein the disenfranchisee and his or her entire family are presumed unworthy of the body politic. Most colonial governments adopted British statutes and common law wholesale and therefore inherited felon disenfranchisement policies with neither debate nor explicit justification. Enfranchisement was typically limited to white male property holders. Typical statutes permanently forbade felons from voting and holding public office, although felons could testify and hold property.

Post-independence America’s felon disenfranchisement trends are unique in the modern world. The general trend worldwide has been to eliminate permanent voting restrictions (Manza & Uggen, 2004). Similarly, the general American trend has been toward increasing electoral enfranchisement, as evidenced by ratification of the Fifteenth (1870) and Nineteenth (1920) Amendments and passage of the Voting Rights (1965) and National Voter Registration (1993) Acts, passage of motor-voter laws, and the elimination of Jim Crow voting literacy tests. By contrast, there has been no clear trend toward inclusion in American felony disenfranchisement laws, in part because of the absence of any national standard allowing each state to establish its own policy. In general, prisoner disenfranchisement increased from 1860 to 1880 and remained steady thereafter. Likewise, probationer disenfranchisement spiked over roughly the same period and remained consistent for nearly a century.

After the Civil War, felon disenfranchisement became increasingly significant as a tool to marginalize African American political power, following voting privileges granted by the Fifteenth Amendment (Johnson-Parris, 2003). Felon disenfranchisement laws had originally emerged as artifacts of British law adopted by some colonial governments along with all British common law without recorded discussion. Unsurprisingly, colonial legislative records typically offered no clear rationale in favor of felon disenfranchisement. In 1790, just 3 of 13 states forbade non-white suffrage. By 1800, most states had restricted suffrage to white male property owners, and by 1840, 20 of 26 states had done so. In light of the possibility of slave uprisings and high proportions of slaves in the general population, antebellum slave states created explicit formal systems for slave restrictions, typically forbidding voting, mobility, property rights, and education. The infamous Dred Scott (1857) decision rubber-stamped the total disenfranchisement of African Americans by declaring them chattel without the possibility of citizenship.

However, in the post-Reconstruction South, southern whites faced the loss of political hegemony, which they countered by a matrix of formal and informal systems of social control, such as Jim Crow laws, voting literacy tests, interracial marriage bans, segregationist institutions, and racist norms. Because African American voting privileges could not be limited by explicit legislation, under the Fourteenth and Fifteenth Amendments southern whites fashioned facially neutral but racially pretextual legislation to reduce African American voting influence.

Many felon disenfranchisement laws were passed for the first time in the late 1860s and the 1870s, when African American suffrage first emerged (Behrens, Uggen, & Manza, 2003). Just as slaves had been, ex-slaves were perceived as both threats to white rule and potential resources (Adamson, 1983). Post-Reconstruction white supremacy advocates preyed on the prejudices and fears of their constituents to promote ideology and harsh treatment for ex-slaves:

Real or imaginary threats to community order will give rise, on the one hand, to harsher treatment of those individuals or groups singled out as threats, and, on the other hand, will increase group solidarity. One of the ideological techniques used by the Democrats to gain control over southern legislatures in the 1870s was to brand the radical Republicans as traitors. The Redeemers played on the fears of the southern white population, describing the alliance of carpetbaggers, scalawags, and blacks, who were exercising their newly acquired right to vote and thereby keeping the Republicans in power, as a corrupt plot. The very foundations of southern civilization were allegedly threatened by the radical Republican state governments. (Adamson, 1983, p. 563)

Legislative records frankly acknowledged the utility of felony disenfranchisement laws in restricting African American suffrage. For example, non-whites made up just 2% of Alabama’s system in 1850 but 74% by 1870 (Manza & Uggen, 2006, p. 57), allowing for a convenient tool for excluding minority voters. Independently, the passage of restrictive felon disenfranchisement laws has been correlated with the presence of minorities: Between 1850 and 2002, states with higher proportions of non-whites passed more restrictive felon disenfranchisement laws, even when controlling for potential confounds of time, region, interracial economic competition, and punitiveness (Manza & Uggen, 2004, p. 493). As a consequence of the package of civil rights restrictions, African American voting influence dropped dramatically nationwide: for example, from 70% eligibility in Mississippi in 1867 to 6% in 1890 (Johnson-Parris, 2003).

Felon disenfranchisement laws thus expanded contemporaneously with the Black Codes and may be accurately viewed as a package of formal social control measures aimed at perpetuating, or reinstituting, the antebellum status quo. The Black Codes helped segregate ex-slaves, force them into hiring-out/sharecropping systems, and prosecute violators, who were often individuals who broke labor contracts. Particularly in areas with high concentrations of ex-slaves—the legacy of intensive slavery in southern states—African American voters were potential threats, particularly if they organized to form an effective voting bloc. The effect of these new measures was to help keep ex-slaves in their preslavery status, that is, “propertyless rural laborer[s] under strict controls, without political rights, and with inferior legal rights” (Stampp, 1965, p. 79).

America’s century of rising incarceration rates has dramatically expanded felon disenfranchisement’s scope. Incarceration rates nearly doubled from 1925 to 1980 but quadrupled from 1980 to 2000 (Manza & Uggen, 2006). As a consequence, while 75 Americans per 100,000 were incarcerated in 1925, nearly 480 Americans per 100,000 were incarcerated in 2000. America’s incarceration rates lead the world and are quintuple those of England and Wales. The consequence of the increased use of incarceration is a corresponding linear increase in disenfranchisement rates. The increase becomes more disturbing when one considers that, in many states, felon disenfranchisement continued after release from criminal justice supervision.

Currently, America is among only a handful of countries worldwide that disenfranchise unincarcerated felons. Although the modern-day scope of American felon disenfranchisement is in flux, several clear trends have emerged since 1950 (Manza & Uggen, 2004, p. 493). First, nearly all American states continue to exclude prisoners from voting, a figure that has actually increased 10% to its current total of 48. Although the majority of states exclude active probationers and parolees from voting, state exclusion rates decreased substantially from 1950 to 2002 (from 84% to 58% and from 84% to 70%, respectively). Although 70% of states permanently disenfranchised felons in 1950, less than 30% did so by 2002. In sum, although prison disenfranchisement has remained nearly ubiquitous, felon disenfranchisement, in its other forms, has exhibited consistent decreases over time.

Perhaps the most startling fact of felon disenfranchisement has been its explosive growth. In lockstep with the burgeoning incarceration rates since 1980, the criminal justice system has cast an increasingly wide net:

All categories of correctional populations—prisoners, parolees, jail inmates, and probationers—have grown at astounding rates since the 1970s. … [A] total of 7.0 million people were under some form of correctional supervision in 2004, relative to 1.8 million as recently as 1980. Prisons and jails in the United States now house more than 2.2 million inmates, representing an overall incarceration rate of 726 per 100,000 population … By comparison, approximately 210,000 were imprisoned in 1974, or 149 per 100,000 adult U.S. residents. In 1980, there were only 1.1 million probationers and 220,000 parolees, compared to more than 4.1 million probationers and 765,000 parolees in 2004. (Uggen et al., 2006, p. 285)

Thus there are now far more disenfranchised individuals than ever before.

Felon disenfranchisement affects over 5 millionAmericans (Manza & Uggen, 2004). Despite formal tallies, the actual scope of felon disenfranchisement remains a dark figure. The nearly 300,000 inmates serving jail time for misdemeanors and over 300,000 unconvicted pretrial detainees typically cannot vote because of incarceration. Likewise, many otherwise eligible felons may be unaware, because of ignorance, of the restoration of their voting rights (Uggen & Manza, 2004a). Reflecting state variations in policy and demographics, some states disenfranchise far larger voting populations than others. Florida, for example, disenfranchises over 1 million people, whereas two states disenfranchise none.

The astounding increase in disenfranchisement has had a magnified effect on marginalized socioeconomic groups, such as African Americans, who are disproportionately marginalized. One in 6 African American men cannot vote (Manza & Uggen, 2004). Felon disenfranchisement effects go beyond this relatively high figure, however, if, as estimated, 1 in 3 African Americans will go to prison during their lifetimes (Bonczar, 2003).

Correctional surveys have consistently identified a Democratic skew in felon disenfranchisee preferences. According to the Survey of Inmates of State Correctional Facilities (U.S. Department of Justice, 2000), in every presidential election from 1972 to 2000 correctional populations favored Democratic candidates, with values ranging from 66.5% (President Jimmy Carter, in 1980) to 85.4% (President Bill Clinton, in 1992). In other words, at least two thirds of all prisoners favored Democratic candidates, with popular Democrats receiving support from 6 of 7 prisoners. Resolving how many disenfranchised voters would have actually voted was problematic, however, in several ways. First, almost every state disallowed prisoners from voting and, because many potential Democratic voters remained incarcerated, they would have been unable to vote. Second, it appears unlikely that America’s voter policy toward incarcerated individuals will change in the short term; in other words, incarcerated individuals will be unlikely to vote over the next generation. Further complicating voting estimation is the fact that disenfranchised felons may have been less likely to vote than general voters. Because disenfranchised felons comprise a unique segment of society, they could not be assumed to have mirrored national turnout rates.

Using a counterfactual research strategy, Manza and Uggen (2006) examined whether felon disenfranchisement affected past elections:

Would election outcomes have differed if the disenfranchised had been allowed to vote? To fully answer this counterfactual question, we must determine how many felons would have turned out to vote, how they would have voted, and whether those choices would have changed the electoral outcomes. If so, a closely related consideration is whether disenfranchisement has affected public policy through feedback processes tied to these electoral outcomes. (p. 782)

Manza and Uggen (2006) adopted a two-part strategy for estimating felon disenfranchisement voter turnout and choice. First, they matched the felon population to similarly situated voters in the voting-age population and assumed that the felons would demonstrate similar voting characteristics, based on National Election Study data. Second, they estimated voting preferences using data from the Survey of Inmates of State Correctional Facilities Series (U.S. Department of Justice, 2000). They concluded that disenfranchisement policies altered the outcome of the 2000 election. In addition, controlling for changes in conviction rates over time, existing policies and demographics would have cost the Democrats the 1960 and, possibly, the 1976 presidential elections, which were relatively close. Of the over 400 senatorial elections from 1978 to 2002, Manza and Uggen found that seven outcomes would likely have been reversed if not for felon disenfranchisement. Although these outcomes represented a small minority of overall elections, they were significant overall considering the U.S. Senate’s chronically narrow party margins.

There is a conspicuous absence of felon disenfranchisement research into voter preferences of probationers and parolees, who are more likely to be enfranchised in the future than prisoners. Instead, prisoner surveys have typically been used as a means of inferring probationer/parolee preferences. Such estimates suffer from an obvious confound in that probationer/parolee preferences may differ from prisoner preferences. Also, such estimates may be inaccurate because they fail to account for geographical diversity. Prisoners tend to be concentrated in various locales across states and often are housed outside their domiciles. Consequently, such surveys may not be predictive of disenfranchisement trends in particular counties, in particular those involving urban and rural contrasts. Surveys of probationer/parolee preferences, including voting preferences and turnout likelihood, would potentially provide more accurate measures of voting disenfranchisement effects. The importance of direct surveys is underscored by the quadrupling of probationers and parolees from 1980 to 2004 (Uggen et al., 2006).

Legal Status

There is no uniform federal standard for felon disenfranchisement; instead, such policies have been left to individual states to determine. Unsurprisingly, states now exhibit considerable variation in felon disenfranchisement laws, restricted in scope only by constitutional and federal statutory limitations. Although frequently challenged, felon disenfranchisement laws have been consistently upheld. Typical objections fall into three main categories: (1) the Eighth Amendment Cruel and Unusual Punishment Clause, (2) the Equal Protection Clause, and (3) the Voting Rights Act.

The U.S. Supreme Court has generally adopted a hands-off policy concerning disenfranchisement rationales. Eighth Amendment challenges have generally been upheld when the punishment for the crime is disproportionate or excessive. Such considerations are contextual, based on evolving standards of decency in a community. In a non–felon disenfranchisement case, Ewing v. California (2003), the court ruled that, although punishment may have deterrence, retribution, incapacitation, and restoration rationales, the courts must generally defer to the legislature in choosing and justifying particular punishment. Relying on Ewing, modern courts typically will not question the utility of felon disenfranchisement policies.

In Green v. Board of Elections (1967), the 2nd Circuit Court of Appeals declared that felon disenfranchisement was not an Eighth Amendment violation because it was civil, and not penal, in nature. Moreover, even if penal, such a practice would not have qualified as cruel and unusual by the Constitution’s framers because the practice was widespread at the time. Likewise, the court rejected an equal-protection argument, applying a reasonable justification test rather than a stronger test, such as strict scrutiny. The court also noted that the Fourteenth Amendment’s Section 2 appeared to allow for felon disenfranchisement, observing that it acknowledged possible restrictions of voting rights for citizens who participate “in rebellion, or other crime[s].” In ruling, the court adumbrated a social contract rationale for felon disenfranchisement, reasoning that a felon has broken the social contract and may be disqualified from participation in the political franchise. This social contract reasoning became precedent for subsequent courts.

Green’s Fourteenth Amendment analysis was endorsed by the U.S. Supreme Court in Richardson v. Ramirez (1974). The appellants argued that, under the Equal Protection Clause, felon disenfranchisement, as a practice, must be supported by more than reasonableness but by a compelling state interest. Moreover, such exclusion hindered felon rehabilitation. The court ruled that an equal-protection analysis was unwarranted because felon disenfranchisement was countenanced by Section 2 of the Fourteenth Amendment. The court avoided the rehabilitation issue altogether by deferring to the legislature.

However, in Hunter v. Underwood (1985), the Supreme Court showed a willingness to strike down a felon disenfranchisement policy that was originally intended to discriminate against a particular group on the basis of race. The plaintiff challenged the constitutionality of a state constitutional provision that denied voting privileges to individuals convicted of crimes of moral turpitude. After analyzing Alabama’s constitutional convention of 1902, the court concluded that the moral turpitude ban was a product of racial discrimination. It also concluded that the Fourteenth Amendment’s Section 2 was not intended to shield racial discrimination that was otherwise violative of the Equal Protection Clause.

The Voting Rights Act (1965), Section 2, created a new stumbling block for felon disenfranchisement by prohibiting voting practices or procedures that discriminate against a particular group of individuals on the basis of race or color. Prior to the act, whites had often used literacy tests and poll taxes to exclude African American voters; however, there is convincing evidence that felon disenfranchisement was an extra tool of vote dilution that was calculated to diminish a minority group’s voting power.

Thus far, no Voting Rights Act claim has resulted in a successful challenge to felon disenfranchisement. In Hayden v. Pataki (2006), a convicted New York prisoner claimed that felon disenfranchisement violated the Voting Rights Act’s Section 2, arguing specifically that the historical nature of felon disenfranchisement and its disproportionate impact evidenced its intent to discriminate against a group of individuals on the basis of race. The Second Circuit Court of Appeals denied the petitioner’s appeal, arguing that, in New York’s case, there was no clear record of legislative intent to discriminate. In addition, Congress did not clearly intend to apply the Voting Rights Act to felon disenfranchisement policies but rather to other types of exclusionary devices, such as literacy tests. The appeals court noted, for example, that Congress had the opportunity to include felon disenfranchisement specifically but failed to do so. Likewise, they cited Richardson’s analysis that felon disenfranchisement was constitutional under the Fourteenth Amendment, unless otherwise violative of equal protection.

To summarize these cases, courts have tended to defer to legislatures in setting felon disenfranchisement policies. Likewise, courts have been reluctant to infer discriminatory intent in disenfranchisement, even when there is clear evidence of discriminatory impact. At the same time, felon populations have little economic and political clout, as is discussed later. As a result, the utility and impact of felon disenfranchisements are virtually unregulated.

Policy Rationales and Their Empirical Assessment

Legalities aside, felon disenfranchisement’s utility remains problematic. Modern proponents have marshaled numerous nondiscriminatory rationales in favor of felon disenfranchisement, some of which have been subject to empirical assessment. Standard rationales for continued disenfranchisement fall into three general categories: (1) crime reduction/deterrence, (2) retribution, and (3) system efficiency. In the sections that follow, each category is presented and critically evaluated.

Crime Reduction/Deterrence

Felon disenfranchisement has been rationalized as a crime prevention tool in that the threat of such a legal sanction serves as a deterrent to future crime. In other words, a rational actor would view the risk of disenfranchisement as a disincentive and therefore exhibit a decreased likelihood of committing crime. However, no extant research supports a deterrent effect. To establish a clear deterrent effect would require a longitudinal data set with voting rights, conviction records, and postdisenfranchisement conviction records, as well as suitable control variables.

Critics counter that felon disenfranchisement is actually criminogenic (see, e.g., Cholbi, 2002). Viewed in the broader context of criminological and criminal justice theory and research, a deterrence rationale seems farfetched. Even extreme punishments such as the death penalty have exhibited no deterrent effects on crime. Moreover, offenders frequently exhibit low self-control, which may lead them to ignore long-term effects (e.g., disenfranchisement) in favor of short-term gratification. The assumption that all prospective offenders are even aware of the electoral consequences of criminal convictions is dubious. In any event, high-criminality offenders tend to have weak social bonds and may discount the value of enfranchisement. Similarly, felon disenfranchisement may increase criminality by impeding civic reintegration and thereby weakening social bonds. Using longitudinal data, for example, Uggen and Manza (2004b) found that individuals who voted were less likely to commit crimes. However, the finding was weakened by reliance on self-report voting and criminal behavior as controls to simulate the effect of enfranchisement on criminal behavior. In other words, the study did not actually test the effect of prospective disenfranchisement on future criminality; neither did it directly test the effect of past disenfranchisement on future criminality.

Retribution

Felon disenfranchisement is often justified as retribution, which is itself supported by normative discourse. Such rationales typically assert that felons have violated group norms and therefore deserve punishment (Altman, 2005) or at least are justifiably disenfranchised during imprisonment (Lippke, 2001). While ignoring deterrence considerations, modern retributive rationales typically do not support punishment as an end in itself but rather as an expression of group will, which itself serves a useful, integrative purpose by establishing clear boundaries of acceptable behavior and thereby fostering group cohesion. A retribution rationale implicitly assumes that there is widespread community support for felon disenfranchisement. Perhaps more important, retribution brings satisfaction to victims of crime, which is an underestimated purpose of criminal justice systems. Following this reasoning, felon disenfranchisement as retribution may strengthen group solidarity and norms while increasing victim satisfaction.

The broad scope of current felon disenfranchisement policies has received only mixed public support. In general, there is widespread support for felon disenfranchisement for felons serving active prison sentences (Cholbi, 2002). However, public support for felon disenfranchisement typically varies by offender status and conviction type. Although there is strong public support for felon disenfranchisement of prisoners and offenders who have committed certain serious or violent felonies, 80% of the public favor reenfranchisement for felons after completing their criminal justice supervision (Manza, Brooks, & Uggen, 2004).

Unfortunately, no research has found benefits flowing from disenfranchisement. Proponents typically argue in philosophical or moral terms but lack any empirical basis to assert that disenfranchisement strengthens norms or group solidarity. By contrast, however, critics charge that such policies are unfair and immoral in that there is a clear disproportionate impact on minorities, specifically African Americans. In 1998 elections, for example, at least 10 states formally disenfranchised 20% of African American voters (“Felony Disenfranchisement,” 1999).

Proponents have argued that felon disenfranchisement is not a punishment at all but a civil action (Deigh, 1988), which may obviate the need for standard punishment justifications or legal analyses. Though effective in legal contexts, such arguments seem implausible and/or like splitting hairs in other normative contexts, because the loss of a right or privilege as the result of criminal behavior typically qualifies as punishment. In addition, felon disenfranchisement policies make no distinction for offense severity, counterintuitively treating minor and major felonies equally. Critics (see, e.g., Cholbi, 2002) have argued that felon disenfranchisement policies would be more rational if they accounted for offense severity, although justifying such distinctions or gradations among felonies would prove problematic.

System Efficiency

Harkening back to feudal doctrines, a common rationale for felon disenfranchisement is based on social contract and moral competence. The felon, it is argued, has violated the social contract and is thereby excluded from the privileges of the body politic (Johnson-Parris, 2003). A related argument is that such exclusion is necessary and justified to ensure the efficient working of the political system, or the purity of the ballot box (Manza & Uggen, 2006). Allowing felons to vote would presumably compromise the independence and integrity of the criminal justice system.

Proponents of ballot box purity appear to base their support of felon disenfranchisement on unproven assumptions. Even if felon disenfranchisement were allowed, it is by no means clear that previously disenfranchised felons would base their voting preferences on a candidate/party’s penal policy:

No evidence suggests that ex-felons would base their votes solely, or even partially, on a candidate’s positions on penal issues rather than other matters of policy and politics. Furthermore, even if ex-offenders were to base their votes on matters of criminal justice, it does not follow that their positions on these matters necessarily would be more permissive than those of the population as a whole. (“The Disenfranchisement of Ex-Felons,” 1989, p. 1303)

In other words, if the point of disenfranchisement is to protect the integrity of the criminal justice system, it is by no means clear that disenfranchisement would do so, casting doubt on the significance/utility of excluding felons from voting.

By contrast, critics have argued that excluding mass numbers of felons impairs, rather than promotes, system efficiency, in that the broad scope of felon disenfranchisement results in democratic contraction (Uggen & Manza, 2002). The exclusion of African American voters has impacted close election outcomes, such as the 2000 presidential election and Kentucky’s 1984, 1992, and 1998 senate races. In the last, Republican Jim Bunning defeated Democrat Scott Baesler by 7,000 votes; however, Kentucky’s felon disenfranchisement laws at that time permanently excluded felons from voting, eliminating 6,000 African American prisoners and 7,600 African American probationers and parolees, as well as thousands more permanently disenfranchised African American voters. In the election itself, the vast majority of African American voters voted Democratic (“Felony Disenfranchisement,” 1999). Afterward, Kentucky amended its policy to ease felon reintegration by allowing felons to apply for reenfranchisement. Unsurprisingly, however, Kentucky Republicans, such as Senator Mitch McConnell, have continued to support felon disenfranchisement (Manza & Uggen, 2006, p. 12). As a barrier to reenfranchisement, Republican Governor Ernie Fletcher ordered that felons be required to write an essay, which resulted in a slower rate of reenfranchisement and favored Republicans. His successor, Democratic Governor Steven Beshear, eliminated the essay requirement altogether, which favored Democrats.

Perhaps most disturbingly, the racial skew of felon disenfranchisement has only widened since President Ronald Reagan’s war on drugs. Drug incarceration rates increased faster than any other incarceration type during the past quarter century. Whereas drug crimes accounted for 10% of incarcerations in 1974, by 1997 they comprised 26% (Uggen et al., 2006). Much of the increase resulted from crack cocaine interdiction efforts, which disproportionately involved African Americans. African American incarceration rates, which were already higher than white rates, increased approximately 275% from 1980 to 2004, whereas white rates increased less than 100% over the same period.

Compounding system impairment are the formal and informal collateral consequences of felony convictions, which severely impact an offender’s life chances. Incarcerated felons typically leave prison with little or no money. While incarcerated, their families suffer economic hardships. Upon release, ex-felons face difficulties in securing employment, and certain professional jobs are forever closed to them. A felony record carries a permanent social stigma. Felon disenfranchisement provides yet another barrier to civic reintegration. Overall, an ex-felon’s reduced opportunities have an intergenerational character that affects the life chances of their children, because being an ex-felon provides them with less social capital.

Sociology of Law Explanations

Sociology of law explanations of felon disenfranchisement are descriptive and not prescriptive in that they typically ignore the relative merits of felon disenfranchisement rationales while focusing on the underlying causes of the policies themselves. Functionalist theory, social distance theory, conflict theory, and culture of control theory provide four influential theoretical explanations for felon disenfranchisement, which are considered in order.

Talcott Parsons’s (1951, 1952/1954, 1982) functionalism, the dominant American sociological perspective until the 1960s, analogizes any social system to an organism, which depends on specific organs to carry out specific functions necessary for the organism’s survival. Under functionalism, any system, including the criminal justice system, can be divided into four interdependent subsystems corresponding to (1) economy, (2) policymaking, (3) policy enforcement, and (4) norm transmission/pattern reinforcement spheres. Should any subsystem’s functions fail, all the subsystems would fail. For example, the failure of the economy would lead to the collapse of the other subsystems. Policymakers are individuals who have accepted the role of legislators. In playing their roles, the legislators employ means–end reasoning and rationality to devise policies to support the three subsystems. For example, a legislator may support a law in favor of felon disenfranchisement if the legislator decides, in his or her role as policymaker, that felon voting is bad policy that might adversely affect the independence of the policymaking subsystem or the efficacy of the policy enforcement subsystem. Functionalist analysis lends itself to consideration of the relative merits of felon disenfranchisement policies. The oft-criticized weakness of the functionalist approach, however, is that policymakers are not always disinterested, rational decision makers working in unison for the public good; instead, their decisions are inextricably bound with their personal interests and prejudices and often in direct conflict.

In social distance theory, Donald Black (1970, 1979, 1998, 2000) has argued that social distance between individuals increases the likelihood and extent of formal social control between them. Unlike physical distance in a multidimensional physical environment, social distance is socially constructed and corresponds to the perceived configurations of individuals in social space. For example, individuals of similar socioeconomic status and cultural backgrounds may perceive themselves as socially close, whereas individuals of divergent status and cultural backgrounds may perceive themselves as socially distant. Black predicted that social distance affects macrolevel behaviors, such as law making and law invoking. Unlike gravity, social repulsion actually increases with social distance. Thus, Black predicted that the greater the social distance between two groups, the more likely that one group will create and invoke laws regulating the interaction between the two groups. Black (1998, p. 144) argued that moralismcan be a consequence of extreme social distance:

[A] tendency to treat people as enemies … Moralism is a direct function of social remoteness and superiority. Those with the strongest partisans tend to be socially close and superior, while those with the greatest enemies tend to be socially remote and inferior. (p. 144)

In Blackian terms, felon disenfranchisement is the result of extreme social distance between felons and policymakers and their constituents, which in turn leads to feelings of moral superiority justifying exclusionary laws. In other words, the laws themselves are not necessarily justified by public policy rationales but exist because of social distance factors.

Although Karl Marx is famous for his thesis that economics drives political development (Tucker, 1978), modern Marxist thought has morphed into a more general tool of analysis, conflict theory, wherein individuals and institutions interact with each other on the basis of self-interest, often driven by an underlying process that is not necessarily apparent to observers (see, e.g., Adamson, 1983; Coker, 2003). Because rational, self-interested actors strive to maximize benefits, and such benefits may occur at the expense of others, individuals and institutions eventually will come into conflict, the end result of which is often conflict and coercion. The empowered will be able to actualize their interests, whereas the powerless will be coerced into accession. In conflict theory terms, felon disenfranchisement is predictable because the empowered legislators tend to be wealthy and supported by the wealthy and the middle class, both of whom disfavor felons as a class. Regardless of the theoretical explanation of felon disenfranchisement, an incontrovertible factor in America’s felon disenfranchisement policies is that felons as a rule have relatively little influence in the political marketplace. As a class, felons are typically poor, and their legal status is associated with decreased economic opportunities for both them and their families. Support for felons may cause a politician to be perceived as “soft on crime” and is not politically expedient, especially considering that such felons cannot vote. Thus, regardless of the relative merits of rationales in favor or against felon disenfranchisement, the policies themselves are dictated by the calculi of self-interest.

Like Blackian theory, conflict theory itself lends itself to insidious interpretations of felon disenfranchisement. In arguably the most famous modern expression of conflict theory in criminal justice contexts, Michel Foucault argued that underlying the modern criminal justice system is a technology, discipline, aimed at the production of docile bodies, or mind control. Although the discipline’s proponents assert that the technology itself is oriented toward public safety and treats everyone equally, the technology itself is focused on what policymakers perceive as groups that threaten their power base, such as terrorists, felons, or potentially even minority groups. If certain elected officials predict that felons and African Americans would not support their reelection, these same officials would likely oppose felon enfranchisement, regardless of public policy justifications. The criminal justice system itself thus becomes a tool for the maintenance of one group’s coercive power over another.

In culture of control theory, Garland (2002) elaborated on Foucault’s arguments, asserting that, since 1970, America has entered into a new punitive phase, wherein policymakers and their public have largely rejected the rehabilitative ideal in favor of an actuarial model wherein offenders are viewed as risks to be guarded against via formal and informal social control measures. Individual safety is of paramount importance, while offender rights and life experiences are discounted. Incarceration and physical separation from offenders are viewed as desirable in that they reduce public risk. As a consequence of this new culture of control, Americans are resisting international trends toward felon enfranchisement.

Theoretical explanations are not justifications and typically contain no moral dimension of “oughtness.” They suggest why felon disenfranchisement laws exist without justifying the latter’s existence. Nevertheless, these theoretical perspectives provide useful frameworks for evaluating proposed rationales. Whereas a functionalist perspective might take a claimsmaker’s policy justifications at face value, other perspectives (see, e.g., Coker, 2003) would question the claimsmaker’s underlying motivations. For example, social distance and conflict theorists would agree that a claimsmaker’s policy justifications may serve as pretextual covers whereby a claimsmaker can self-justify acting on his or her prejudices and self-interest. Consistent with social distance and conflict theories, early American felon disenfranchisement laws appear to have resulted from a conscious desire to oppress minorities, even though they were drafted as facially neutral, targeting no specific group other than felons.

Conclusion

Current felon disenfranchisement policies reflect punitive American attitudes and court deference to legislatures in punishment. Since the 1970s, the American criminal justice system has moved toward harsher punishments, in stark contrast to trends in Western industrialized nations. Thus, even as the world has moved toward increased electoral enfranchisement, felon disenfranchisement has remained relatively constant in America. Despite clear evidence that many disenfranchisement policies are artifacts of racial discrimination, only a handful of felon disenfranchisement challenges have been upheld. Courts have typically refused to subject felon disenfranchisement policies to strong constitutional tests, such as strict scrutiny. Likewise, they refuse to look for disparate impacts on populations alone, absent a clear discriminatory intent. Facially neutral disenfranchisement laws have consistently been approved, despite the dilution of minority voting populations. As a consequence, courts have rubber-stamped pretextual tools of exclusion and allowed for the possibility of racial politics.

Although American felon disenfranchisement policies continue to receive broad political support, few criminologists, criminal justice researchers, and/or legal scholars support them, because little empirical evidence suggests that they are effective. Such policies serve as barriers to civic reintegration and are, at least in theory, criminogenic. There is a clear need for a nationwide, longitudinal study of the effects of felon disenfranchisement over time, which might help disentangle the effect of felon disenfranchisement on criminality. Nevertheless, the existing evidence suggests that felon disenfranchisement policies are counterproductive, irrational, and sometimes pretextually discriminatory. Unfortunately, these policy implications have been largely ignored by courts and lawmakers, in part because of the normative nature of discourse surrounding felon disenfranchisement.

Perhaps most disturbingly, felon disenfranchisement has disproportionately affected marginalized economic groups. Often, the parties opposing increased enfranchisement have been the same parties benefiting from disenfranchisement, suggesting that criminal justice policy is, at least partly, a Foucaldian political tool. The consequences of disenfranchisement on affected groups can be long lasting and harmful. If a key goal of effective criminal justice policy is reintegration, then disenfranchisement is pernicious thereto. Cohen (1985) theorized that the strength of social control is related to both formal and informal social control, which together can be conceptualized as an interlocking web. The strongest systems of social control result from effective formal social control measures, accompanied by effective informal social control, which itself may be affected by public perceptions of the legitimacy of formal social control measures. Merton (1936) argued that formal actions, such as laws, regulations, and policies, can have unintended consequences. Assuming, for purposes of argument, that both theorists are correct, felon disenfranchisement may be conceptualized as a purposive attempt at formal social control, accompanied by unintended negative consequences. The disenfranchisement of marginalized groups has disincentivized reintegration, which served no useful public purpose. Likewise, such disenfranchisement may have lowered the adversely affected groups’ perceived legitimacy of the criminal justice and political systems, thereby reducing overall social control.