The History of Felony Disenfranchisement and the Proliferation of Second-Tier Citizenship
by Britney Firmin
In honor of today’s midterm elections, BARS sought to examine the many ways in which felony disenfranchisement has been institutionalized at both the state and federal levels. This piece explores the long history of disenfranchisement in the United States and demonstrates the undemocratic nature of the second-tier citizenship that many formerly- and currently-incarcerated individuals face today.
[image from Miner, Barnhill & Galland, P.C.]
Felony disenfranchisement leaves a lasting mark on voter turnout in the United States. The restriction of voting rights for ex-offenders reinforces the prevailing stigma of criminality, which encompasses their lives even when beyond prison walls. In forging a prison beyond the prison, not only do former offenders have to grapple with restoring their lives, they must do so in a restrictive sphere of second-class citizenship that often includes isolation from the job market. The very act of voting is often classified as a fundamental element of a democracy rooted in the sovereignty of the people. With the 15th amendment prohibiting voter disenfranchisement on the basis of race or previous level of servitude, it is evident that at the federal level the promotion of an egalitarian voting system nationwide can forge an ideal structure in which all individuals engage in participatory democracy. Though the 14th amendment is largely referenced in safeguarding the privilege and immunities and equal protection of the law for all citizens regardless of racial background, the more overlooked provision of this amendment provides a legal tool for states to restrict the voting rights of individuals in cases where they’ve committed “rebellion or other crimes.” In assessing the reality of voter disenfranchisement as it is known today, it is important to analyze the history of the carceral state’s manifestation across time in the United States.
The history of felony disenfranchisement extends long before the rise of mass incarceration, formally developing by the end of the Civil War and throughout the early 20th century. With the imminent dominance of Reconstruction sparking fear in Southern states, many local legislators quickly acted to restrict the mobility and autonomy of freed Black Americans who were now considered citizens with constitutional protection. The passage of the Black Codes, and the subsequent vagrancy laws illustrate the early origins of punitive racial control. In this sense, carceral punishment was used as a tool to achieve these ends through the development of punitive laws that targeted Black Americans during this time period. Today, the United States is unparalleled in its exorbitant prison population. This in part stems from the reintegration of a system of legal control conceived during the tough on crime period of the mid-1970s. Minority populations constitute disproportionate amounts of prison populations, which stems from punitive drug criminalization during the War on Drugs. In what Michelle Alexander describes as a racial caste system in The New Jim Crow, incapacitation or the mere use of imprisonment to deter future offenses, has also been used as a legal tool to render prisoners as second-class citizens, providing legal means to restrict the mobility of Black Americans with the nadir of overtly racist Jim Crow era legislation.
With the history of the Black Codes, vagrancy laws, and the subsequent proliferation of the War on Drugs, current and former offenders are still caught in a punitive criminal justice system that yields continued disenfranchisement in the modern day. According to the Sentencing Project’s 2016 study on voter disenfranchisement, research found that a total of 6.1 million felons were disenfranchised across all states. Though only 1.7 million felons were denied voting rights in 1976, the intersection of law and order and the formulaic development of a racial caste system both point to the ways in which punitive penal policy has been used as a form of legal control. 2.5% of the U.S voting population is disenfranchised as a result of a current or former conviction, with 7.4% of African Americans in particular facing disenfranchisement upon release from prison. The steady growth in disenfranchisement through 2016 speaks to the ripple effects of the tough on crime movement, leaving room to assess how former prisoners so often have high recidivism rates. Though the rates of disenfranchisement vary across states, a case study of disenfranchisement in Florida provides an important model for seeing the negative impact that voter restrictions have on prison populations. According to the same study conducted by the Sentencing Project, the state accounts for 27% of the national disenfranchised population alone,with the disenfranchisement of former offenders accounting for 48% of the nation’s entire disenfranchised population. Pennsylvania is one of the 14 states that restores the right to vote for former offenders once they’ve served their sentence, with an overwhelming lack of transparency on eligibility during the re-registration process. Voting restrictions continue to abridge the rights of former offenders, manifesting in the form of voter identification laws that denote one’s eligibility to vote. The fact that some states continue to disenfranchise former offenders even after they’ve served their prison sentences speaks to the ways in which ex-offenders are constrained by their criminal history.
With current criminal justice reform efforts geared towards counteracting recidivism and reducing prison populations, a central roadblock in these efforts are the punitive measures taken by state governments. Though it is difficult to forecast political outcomes in the theoretical instance where current and former offenders are granted the right to vote, the politics of crime control still serves as a powerful impetus that has a large impact over the nature of election outcomes. Voter disenfranchisement serves as a constant impediment in the lives of former offenders who have paid retribution. This coincides with restricted employment opportunities granted to ex-offenders as a result of a prevailing stigma of criminality. According to the Prison Policy Initiative, the criminal justice system sustains a cycle of poverty for former offenders aiming to restore their lives via employment. When paired with felony disenfranchisement, the phenomenon of second-class citizenship is legitimized.
In the wake of voter disenfranchisement, it is evident that the United States has an extensive history in developing punitive crime policy. Clearly, the impetus of the carceral state as it is known today has disparately impacted minority populations. Heading into the current midterm elections, voter disenfranchisement is a prominent issue that stands in the way of former offenders exercising a fundamental right. Unfortunately, in our excited discussions about the invigorated impact of midterm elections on local governance and progressive reform, the reality of felony disenfranchisement has been largely ignored. So, when casting your ballots today, it is important to keep in mind the numerous voices of those who are unable to do the same.
“6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. Accessed November 03, 2018. https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/.
Initiative, Prison Policy. “Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned.” Prisons of Poverty: Uncovering the Pre-incarceration Incomes of the Imprisoned | Prison Policy Initiative. Accessed November 03, 2018. https://www.prisonpolicy.org/reports/income.html.
“The Drug War Is the New Jim Crow.” American Civil Liberties Union. Accessed November 03, 2018. https://www.aclu.org/other/drug-war-new-jim-crow.
Michelle Alexander, The New Jim Crow (New York: The New Press, 2012).
Baltzell, George W. “Constitution of the United States – We the People.” Constitution for the United States – We the People. Accessed November 06, 2018. http://constitutionus.com/.