Felon Disenfranchisement

• Author: Brian P. Schaefer,Peter B. Kraska
• DOI: 10.1177/2153368712456211
• Published date: 01 October 2012
• Date: 01 October 2012
• Subject Matter: Articles

Felon Disenfranchisement:

The Judiciary’s Role in

Renegotiating Racial

Divisions

Brian P. Schaefer

1

and Peter B. Kraska

1

Abstract

Felon disenfranchisement is deeply rooted in U.S. history as a form of punishment and

as a tool to inhibit African Americans from voting. Today, there are 5.3 million U.S.

residents politically disenfranchised due to a felony conviction—about 2 million of

whom are African Americans. The overrepresentation of African Americans disen-

franchised, and the U.S. history of racism, brings forth the question of how these laws

continue to exist. The objective of this study is to demonstrate, through a socio–legal

approach, the federal court system’s role in perpetuating and maintaining the

ethnoracial divisions in society through the validation and rationalization of felon

disenfranchisement laws. We aim to demonstrate how over the past century many

disenfranchisement laws have been ‘‘whitewashed’’ in order to eliminate any indica-

tion of racially motivated practices, a practice that coincides with the historic

expansion of the penal state in the controlling of minority populations.

Keywords

felon disenfranchisement, race and corrections, race and courts, supreme court

decisions, critical race theory, criminological theories, White privilege,

criminological theories, mass incarceration, race and death penalty, African/Black

Americans, race/ethnicity

1

Department of Justice Administration, University of Louisville, Louisville, KY, USA

Corresponding Author:

University of Louisville, Department of Justice Administration, Louisville, KY 40292

Email: bpscha02@louisville.edu

Race and Justice

2(4) 304-321

ªThe Author(s) 2012

Reprints and permission:

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DOI: 10.1177/2153368712456211

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Introduction

The shift toward mass incarceration in the United States has led to a felon population

experiencing the highest rates of disenfranchisement ever witnessed in the United

States (Manza & Uggen, 2008; Mauer & Chesney-Lind, 2002). Current estimates indi-

cate more than 5.3 million felons or ex-felons are disenfranchised, representing 2.4%

of the population (Manza & Uggen, 2008). For African American males, the effect is

even more pronounced, with one in eight persons of voting age disenfranchised and 13

states disenfranchising more than 10%of their African American population (Hull,

2006; see Appendix A for state-by-state analysis). The geographic layout of disen-

franchisement forms a ‘‘crazy quilt’’ of laws (Ewald, 2005) and exacerbates inequal-

ities through high concentrations of persons under correctional supervision (King,

2007).

The growth of felon disenfranchisement can be attributed to the mass imprison-

ment of select groups of society (Beckett & Western, 2001; Christie, 1993; Garland,

2001; King & Mauer, 2004; Mauer, 1997, 2000, 2001; Mauer & King, 2007a, 2007b).

This drastic increase in imprisonment has disproportionately affected African

American men (Pettit & Western, 2004; Tonry, 1995). African Americans represent

49%of national prison inmates, while constituting only 13%of the entire population.

Further, 32%of Black males between the ages of 20 and 29 are under correctional

supervision (Sabol & West, 2007). The overrepresentation of African Americans in

prison is further indicated by African Americans being ‘‘eight times more likely to be

incarcerated than whites and large racial disparities can be seen for all age groups’’

(Western, 2007, p. 32).

A number of important studies have documented the troubling relationship

between felon disenfranchisement and the African American population (Behrens,

Uggen, & Manza, 2003; Bosworth, Bowley, & Lee, 2008; Manza & Uggen, 2008).

Several quantitative studies of felon disenfranchisement document racial bias in felon

disenfranchisement laws (Behrens, Uggen, & Manza, 2003; Manza & Uggen, 2008;

Miles, 2004). A key legal issue, therefore, is whether the results of these laws violate

the Equal Protection Clause of the 14th amendment. Section 1 of the Equal Protection

Clause allows courts to strike down laws enacted intentionally to discriminate based

on race (U.S. Const. amend. XIV, sec. 1). The research conducted by Manza, Uggen,

and others does not implicate these laws as intentional; however, several legal scholars

have examined the legal decisions regarding the racially disparate impacts of felon

disenfranchisement and noted the difficulty in challenging these laws (Carter, 2007;

Gottlieb, 2002; Handelsman, 2005).

While these few legal studies have shed some light, a significant gap stills exists in

our knowledge about why felon disenfranchisement of African Americans is still

institutionalized in U.S. society and will likely remain so in the near future. One

avenue for providing some answers is to examine the Federal Court System’s role in

maintaining felon disenfranchisement laws, while integrating relevant theoretical

frameworks that help account for the legal and social ideologies employed by the

Federal Court system. The objective of this study, thus, is to demonstrate, through a

Schaefer and Kraska 305