Civil death is different: an examination of a post-Graham challenge to felon disenfranchisement under the Eighth Amendment.

• Author: Grady, Sarah C.

"A man without a vote is a man without protection. He is virtually helpless." Out of such feelings of helplessness were revolutions born. (1)

Since the founding, the United States has struggled with the question of who should be permitted to vote. In their first days as political communities, some states required prospective voters to adhere to specified religions in order to qualify. (2) As conceptions of citizenship changed throughout history, various groups began to lobby for inclusion into the franchise. (3) Proponents of disenfranchisement schemes justified their exclusions on many bases, but most often relied on popular rhetoric suggesting the groups were second-class citizens, not worthy of the honor of the ballot box. (4) In the end, those fighting for suffrage carried the day, and the United States modified its laws to include them. (5) There is one group, however, which has still not attained nationwide suffrage: previously convicted felons.

This Comment argues for the abolition of the most extreme form of felon disenfranchisement in the United States--Virginia's lifetime disenfranchisement of all individuals convicted of any felony--through the framework of an Eighth Amendment challenge. Part I will discuss the history of this practice, including pre-American justifications for stripping various groups of the fight to vote, and analyze the history of past challenges to such schemes. Part II will argue that, given prior case law and the nature of Virginia's provision, the Eighth Amendment is the best vehicle to challenge the constitutionality of felon disenfranchisement. Finally, Part III will apply the analysis articulated by the Graham Court and argue that the Eighth Amendment requires invalidation of Virginia's provision because it constitutes cruel and unusual punishment forbidden by the Constitution.

1. A HISTORY OF DISENFRANCHISEMENT

   1. THE ORIGINS OF DISENFRANCHISEMENT

      The phenomenon of disenfranchisement has a long history reaching back to ancient and medieval times. However, its current form in the United States is both overinclusive (in terms of the population upon whom disenfranchisement is imposed) and underinclusive (in terms of the range of sanctions imposed upon the affected population). Moreover, when the practice was originally brought to the United States from Europe, permanent disenfranchisement was limited to a discrete range of crimes, all closely related to the exercise of the franchise itself. Ultimately, no legal tradition, domestic or foreign, imposed the broad disenfranchisement provisions that currently exist in Florida, Iowa, Kentucky, and Virginia today. Part I.A.1 will discuss the ancient history of disenfranchisement, while Part I.A.2 will discuss the implementation of disenfranchisement in early American history.

      1. Ancient History

         The disenfranchisement of felons long predates the birth of America and traces its roots to ancient Greece and Rome, where criminals were branded with the status of atimia or infamia, depriving them of all of their rights and privileges including the right to vote. (6) The Greeks and Romans dearly coveted these political rights, and losing them was equated with a loss of honor and one's position as a citizen in society. (7) As such, the threat of this loss was an effective way to deter criminal behavior. (8) Centuries later, European states adopted a similar condition called "outlawry," which deprived certain criminals of all legal protections. (9) These criminals were essentially expelled from the political community, losing even the right of legal protection from murder by other citizens. (10) The underlying crime was considered a war on the community, and outlawry was justified as a necessary response by the community to assert its control. (11)

         In England, "outlawry" developed into the concept of "attainder" or "civil death." (12) All of the criminal's property was returned to the control of the king. (13) The "attainted criminal was said to be 'dead in law' because he could not perform any legal function--including, of course, voting." (14) Civil death, like atimia and infamia, served as a deterrent "because the stigma of the loss of civil rights in the small communities of those times increased the humiliation and isolation suffered by the offender and his family and served as a warning to the rest of the community." (15) It was used sparingly, however. As Blackstone explained, civil death was used only "when it is ... clear beyond all dispute, that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society." (16)

      2. Taking Disenfranchisement to America

         English colonists brought the tradition of civil death with them to America. (17) As time passed and colonies began to adjust the old common law to meet their own needs, many of the deprivations that attached with civil death were discarded. (18) Disenfranchisement for criminal activity, however, remained firmly established in early American law. In the pre-Revolution colonies, even established citizens could lose their "freeman" status if they exhibited behavior characterized as "grossly scandalouse, or notoriously vitious." (19) While some colonies merely indicated that misbehavior would result in general loss of freedom, others more directly targeted voting. (20) In Connecticut, for example, a freeman who had been "scandalous" was disenfranchised until "good behaviour shall cause restoration of the privilege." (21) The Code of 1650 similarly dictated that:

         if any person within these Libberties haue beene or shall be fyned or whipped for any scandalous offence, hee shall not bee admitted after such time to haue any voate in the Towne or Commonwealth, nor to serue in the Jury, vntill the Courte shall manifest theire satisfaction. (22) Massachusetts explicitly announced that disenfranchisement was to be imposed for "fornication or any shamefull and vitious crime" or "any evill carriage agnt ye gouernments or churches." (23) Yet, while most of these laws conferred substantial discretion as to when suffrage could be regained, few envisioned permanent deprivation. (24) Those laws that did call for lifetime disenfranchisement generally only allowed it after a conviction for an offense closely related to the exercise of the franchise itself. (25)

         The drafters of these early provisions and the governmental bodies in charge of their enforcement did not specify the purpose of the disenfranchisement penalties. (26) These laws might simply be viewed as the direct descendants of their English forefathers, unquestionably penal in nature and used to punish and deter criminal behavior. (27) On the other hand, the original unamended Constitution did not protect any voting rights, (28) except requiring an election for candidates to the House of Representatives (29) and allowing states to dictate the time, place, and manner for holding elections for congressional representatives. (30) These two clauses taken together suggest that access to the ballot box followed the theme of early American law: the Founding Fathers conferred to the states plenary authority over the franchise while explicitly limiting the powers given to the national government. (31)

         Indeed, a quick survey of early American history sheds some light on what concept of suffrage the Framers had in mind. John Adams and James Madison supported granting the franchise to only white landowning males, worrying that universal white suffrage might allow "the rights of property or the claims of justice ... [to] be overruled by a majority without property, or interested in measures of justice." (32) Even Thomas Jefferson and Daniel Webster, whose visions of suffrage were more expansive, called for the suffrage of men who in some way affirmatively contributed to the government through ownership of property, participation in the army, or by paying taxes. (33) These views of suffrage saw voting as a privilege rather than a right, and it is altogether possible that the Framers intended to leave the matter of voter qualifications entirely to the states. It is no surprise then, that eighteenth-century America extended the franchise to property-owning white males alone. (34)

         As notions of political equality developed in the United States, however, access to the ballot box began to expand. (35) In the early nineteenth century, land ownership requirements fell away and were replaced by less onerous poll taxes. (36) In 1870, the Fifteenth Amendment was ratified, welcoming black men to the franchise. (37) In 1920, women were added to the voting rolls. (38) In 1964, the poll tax was abolished, (39) and in 1971, the United States allowed all citizens age eighteen and over to vote. (40)

         Yet even as the voting rolls have become more diverse, there is one group whose claim to nationwide suffrage continues to be ignored: felons. Contrary to the general trend of expansion, felon disenfranchisement actually gained momentum in the early years of American history. (41) In 1840, only four of the existing twenty-four states had codified felon disenfranchisement schemes, (42) but by "the eve of the Civil War, some two dozen states had statutes barring felons from voting or had ... [similar] provisions in their state constitutions." (43) This change increased its speed in the years immediately following the Civil War. (44) By 1870, twenty-eight of the thirty-eight states deprived citizens of the vote based on a felony conviction. (45) Many have noted that this increase is largely due to the fact that southern states used criminal disenfranchisement provisions to prohibit black men from access to the ballot, otherwise barred by the Fifteenth Amendment. (46)

         In addition to the increase in the number of states that enacted disenfranchisement provisions during this time, the nature of those provisions also changed. (47) Rather than limiting the penalty to offenders who committed a discrete group of...