In Missouri, individuals who have committed a felony offense cannot vote until they have completed their prison sentence and any probation or parole. There are areas of both continuity and change over the two centuries since Missouri's first constitution allowed the legislature to limit the suffrage rights of those convicted of infamous crimes. In pre-Civil War Missouri, the concept of infamy was a part of legal culture, as was the case in other states. Infamy connected the degradation of criminal activity and criminal punishment with the loss of citizenship rights and thus provided the intellectual foundation for felon disfranchisement. In the half decade after the Civil War, disfranchisement laws were used to target African American voters in most former slave states to achieve partisan and racial ends, and there is some evidence that this was the case in Missouri also. These laws continue to disproportionately affect African American voters in the present day. In the late nineteenth and early twentieth century, questions of pardon, parole, and restoration of rights played a key role in shaping the popular and legal understanding of felon disfranchisement. Today, there is no constitutional requirement to extend disfranchisement through probation and parole, and many other states have recently changed their laws so that voting rights are restored after release from incarceration.
Under current Missouri law, individuals who have committed a felony offense cannot vote until they have completed their prison sentence and any probation or parole. (1) Individuals convicted of election-related offenses are permanently barred from voting. (2) As a result of these restrictions, approximately .5% of the eligible population of Missouri cannot vote due to a criminal conviction. (3)
The present legal landscape is the product of a long historical legacy. Over the course of almost two centuries, laws and policies governing the voting rights of ex-offenders in Missouri have changed in response to political, social, and legal developments. In other respects, much has remained the same. The relevant constitutional provisions enabling disfranchisement as a punishment for crime have changed little over two centuries. As it was at statehood, Missouri's current constitutional provision is not self-executing. The constitution states, "Persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting." (4) This provision empowers the legislature to exclude convicted felons from suffrage but gives the legislative body much discretion in doing so.
Today, as at the time of statehood, Missouri residents who are incarcerated but otherwise eligible to vote are barred from suffrage, but disfranchisement extends beyond incarceration for many. (5) Missouri is one of eighteen states that extends disfranchisement through probation and parole, restoring rights to ex-felons only after they have completed court supervision. (6) While being freed from incarceration to rejoin society might be understood to be an indication that one's punishment has ended and one's rights of citizenship have been restored, continuing disfranchisement through probation and parole suggests that ex-felons remain tainted even when no longer incarcerated. Missourians in earlier periods weighed the question of how long disfranchisement should extend after incarceration, and the state has seen several different schemes for disfranchisement and subsequent restoration of citizenship rights throughout its history. (7)
The disproportionate impact of these laws on African Americans today also has historical antecedents. African Americans in Missouri are more likely than white voters to be disfranchised, with 5.8% of eligible African Americans in the state ineligible to vote due to a criminal conviction compared to 1.9% of the total population. (8) In the post-Civil War era, these laws were used to perpetuate racial hierarchies. (9) White leaders in most states that had practiced racial slavery used and modified existing laws that disfranchised for crime to target African American voters, denying black men the right to political participation they had won with the passage of the Fourteenth and Fifteenth Amendments. (10)
This Article examines the enactment and enforcement of laws disfranchising for criminal convictions during three periods of Missouri history. For each period, Missouri's history is contrasted to developments in other states. Regional comparisons between so-called "slave" and "free-states" - those that maintained a system of racial slavery until the end of the Civil War and those that eliminated it much earlier - are also made. Each section also offers an overview of the national and regional landscape of these laws during the relevant period. This Article begins with an examination of pre-Civil War Missouri law and an exploration of the concept of legal infamy. Infamy is a complicated and shifting concept, but it connected the degradation of criminal activity and criminal punishment to the loss of the right to vote. (11) Part III examines the Reconstruction era through the late Nineteenth century, a period where these laws were used to target African American voters in most former slave states. Part IV encompasses the early to mid-Twentieth century. In this period, questions of pardon, parole, and restoration of rights played a key role in shaping the popular and legal understanding of felon disfranchisement. This Article concludes with a discussion of the implications of this historical legacy for the present.
STATEHOOD TO THE CIVIL WAR: INFAMY
Laws denying rights and privileges of citizenship to individuals convicted of certain criminal acts have long existed in the western world. In fact, such practices date back to ancient Greece and Rome and have antecedents in early modern European law as well as in English common law. (12) The practice of punishing serious crimes with denial of the vote migrated from Europe to the new American republic, and by the 1830s, most states had laws disfranchising people convicted of major crimes. (13)
Missouri Law in the Early Decades of Statehood
In advance of becoming a state in 1821, the U.S. Congress authorized Missouri residents to write a constitution. (14) Among the provisions of the Missouri Constitution of 1820 was, "The general assembly shall have the power to exclude from every office of honor, trust, or profit, within this state, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime." (15) This authorized the newly-created General Assembly to pass legislation restricting voting by people with certain kinds of criminal convictions.
The legislature soon acted in accordance with this authority. The first criminal statutes passed by the legislature, part of the 1825 code, punished a variety of crimes with disqualification from holding office, testifying in court, and serving on a jury, in addition to the standard criminal penalties of fines, imprisonment, and/or whipping. (16) This suggests the legislature interpreted "office of honor, trust, or profit" broadly to include not only elected office but also serving on a jury or as a witness in court. Those convicted of stealing a slave, (17) stealing a horse, mare, gelding, mule, or ass, (18) counterfeiting or forgery, (19) or perjury lost all four of these privileges. (20) Individuals who bribed public officials or bought or sold public offices could not hold office or vote but could testify and serve as jurors. (21) Individuals convicted of bigamy were rendered infamous - the only mention of "infamy" in the statute - and could not hold office or testify. (22) Individuals who received bribes for voting could no longer vote; (23) jurors who took bribes could no longer serve as jurors. (24)
The 1825 statutes appear to have been a work in progress - at least with regard to infamous punishments - since the 1835 criminal code offered a broader and more consistent definition of infamy. (25) Under the 1835 code, one became infamous in Missouri by committing an infamous crime, including "every offense for which the offender, on conviction or sentence, is declared to be disqualified or rendered incompetent to be a witness or juror, or to vote at any election, or to hold any office of honor, profit or trust." (26) In short, infamous crimes were those that resulted in infamous punishment. The criminal code iterated which crimes brought about these infamous punishments; these were thus defined as infamous crimes. (27) While this statute might at first glance seem to offer a circular definition, this was in fact a classical articulation of infamy. One could become infamous because certain punishments were degrading and thus lowered the social status of those who received them. (28) Losing the right to vote, which reduced one's function as a person of honor and impeded one's role as a citizen, brought about degradation. The legal term for that degradation was "infamy." (29)
This statutory definition of infamy was in line with developments in American law in this era, which some viewed as more democratic than English common law. In 1836, the Vermont Supreme Court pointed out that allowing courts to determine what was infamous was "consistent with the principles of the English oligarchy," but not befitting a democracy. (30) In America, "it would seem to belong to the legislature to decide what crimes should be considered infamous." (31)
The criminal statutes enacted by the Missouri legislature in 1835 offered a list of infamous crimes that was much more extensive than the 1825 code. (32) Infamous, disfranchising crimes included crimes against the state such as treason, rebellion, and insurrection. (33) Many violent crimes were infamous, including first degree murder, rape, and manslaughter, but not lesser degrees of these crimes, some of which...