A record 6.1 million people in the United States are barred from voting as a result of felony disenfranchisement laws. Policies in 48 states prohibit persons with felony convictions from voting for varying periods of supervision, including those who are incarcerated, on probation or parole, or (in 12 states) even after completion of supervision. Disenfranchisement poses challenging questions for the meaning of democracy, and it erects a barrier for successful reentry to the community after prison. A broad reform movement dating from the late 1990s has achieved policy reform in many states, but moving forward we should consider the model of many industrialized nations that view disenfranchisement as a fundamental aspect of citizenship that should not be taken away as a result of a criminal conviction.
IN 2016 VIRGINIA GOVERNOR TERRY MCAULIFFE DRAMATICALLY announced that he would restore the right to vote for an estimated 206,000 citizens who had completed their felony sentences yet remained disenfranchised. His action received substantial national attention, as well as immediate opposition among Republican legislators in the state, who referred to his move as a ploy to secure Democratic votes in the upcoming presidential election. The issue was taken to court and resulted in the state Supreme Court ruling that the governor only had the power to restore rights on an individual basis, not wholesale. Subsequently, Governor McAuliffe complied with the decision and by the end of his term had restored voting rights to 173,000 individuals.
These developments in Virginia help to frame the impact of a two-century-old policy regarding citizenship in the era of mass incarceration. Over time, the racist history and/or impact of these policies has been quite evident but with only relatively modest challenges and periodic attention. It was the advent of mass incarceration and the growing recognition of its collateral effects that inspired the development of a broad movement to challenge the denial of voting rights for people with criminal records.
As I will show, the campaign for felony disenfranchisement reform over the past 20 years has been widespread and effective in many respects. Despite this, the unprecedented rise in criminal justice populations since the 1970s has produced a record number of disenfranchised people. Clearly, the challenge for reformers is to develop a strategy to enhance the scope and success of this movement.
In so doing, it will also be important to evaluate how we conceive of the challenge before us and, in particular, of the idea of citizenship for individuals with a felony conviction. For understandable political reasons, that framing has been largely absent in the movement to date. However, if we are to achieve a full emancipatory vision for reform, the next stage of the disenfranchisement movement will need to consider the illegitimate connection that has prevailed between punishment and citizenship.
Overview of Disenfranchisement in the United States
Disenfranchisement policies in the United States were initially adopted at the nation's founding as a holdover from the colonial period. Longstanding prohibitions on citizenship, framed as "civil death"(Ewald2002),were adopted by the founders, along with a host of other exclusionary policies (Keyssar 2000). The group of wealthy white male property holders in power granted themselves the right to vote but excluded women, African Americans, poor and illiterate people, and those with a criminal conviction.
Over time disenfranchisement policies have been tweaked and revised, at times with an explicit intent to disenfranchise African Americans. During the post-Reconstruction period in the South, a number of states undertook a variety of measures to disenfranchise the newly won voting rights for Black males. This frequently involved making distinctions regarding which crimes would result in disenfranchisement based on arrest patterns and race-based perceptions of criminality. Low-level property crimes, such as petit larceny, were in some instances upgraded from a misdemeanor to a felony or in other cases resulted in loss of voting rights. In some states, this meant that a person convicted of stealing a chicken would lose the right to vote, but not someone who killed the chicken's owner. Historian Pippa Holloway concludes that the "combination of statutory revision, constitutional amendment, and judicial action forms a region-wide pattern of expanded punishment for petty theft that was identified at the time as intended to disenfranchise African Americans" (Holloway 2014, 57).
Disenfranchisement policies have always raised questions about democracy and participation, but until the era of mass incarceration their actual impact on electoral participation was relatively modest. With the dramatic growth of the carceral state since the 1970s, a record number of people have now lost the right to vote.
Proponents of felony disenfranchisement have offered a variety of rationales to support the need for such a policy. These have generally been lacking in empirical support and frequently run counter to long-standing notions of the meaning of citizenship and the right to vote.
Roger Clegg, for example, president of the Center for Equal Opportunity, is a longtime critic of the reform movement on felony disenfranchisement. He and his colleagues argue that disenfranchisement policies can be traced back to ancient Greek and Roman norms, with no acknowledgement that policies that may have been perceived as reasonable to the state thousands of years ago may not necessarily be relevant to twenty-first-century America--nor, we might add, do modern-day Greece and Italy abide by those restrictions, as they allow some categories of prisoners to vote today
Clegg and colleagues also contend that people with a felony conviction are "less trustworthy and responsible" than other citizens and therefore should be subject to greater scrutiny in permitting them to exercise the franchise (Clegg et al. 2008, 18). In this regard, they make a rather substantial leap in the modern-day meaning of democracy, which has been considered by both scholars and policy makers to be based only on citizenship and age. If one begins to introduce character considerations, such as being "responsible," the criteria for voting rights could become so vague and subjective that many of us might not qualify.
Proponents of felony disenfranchisement sometimes raise the specter of an anti-law enforcement voting bloc as well, inspiring images of large numbers of people with felony convictions...