During Congress's annual open season on criminals, few lawmakers are eager to defend the rights of the accused, let alone the convicted. So it was particularly refreshing this year to see a proposal in an alternative crime bill submitted by Representative Craig Washington that would have guaranteed the right to vote in federal elections to ex-convicts and to convicts serving nonprison sentences.
Washington's measure didn't stand a chance of becoming law in this frenzied tough-on-crime climate. But it should prompt civil rights advocates to revisit one of our nation's most persistent yet little known injustices: the exclusion from the electorate of millions of citizens because of their status as former or current criminal offenders.
Only three states, Maine, Massachusetts and Vermont, allow inmates to vote. And in many places, a convict released from prison doesn't gain his most basic political right: thirty-five states deny suffrage to non-incarcerated offenders, such as those on probation or parole; fourteen states <%-2>disenfranchise offenders for life unless they are pardoned (which is rare). As a result, the right to vote is denied to at least 4 million Americans, a disproportionately large share of whom are black and Latino.<%0>
The tradition on banishing criminals from the body politic is an old one, passed down from Roman and medieval regimes in which felons who were lucky enough not to be summarily tortured and killed would find themselves cast out into the woods. One history on English law portrays the convict as "a wild beast... not merely is he a `friendless man,' he is a wolf." The dehumanizing origins of disenfranchisement are an acute reminder of how inconsistent the practice is with modern theories of criminal justice. Taking the right to vote away from a lawbreaker has nothing to do with safety or deterrence; if it is a form of retribution, it is unacceptably arbitrary, and many legal scholars believe that the stigma of disenfranchisement hinders a criminal's rehabilitation and contributes to recidivism.
Furthermore, while convicts are often deprived of their rights and liberties for reasons unrelated to punishment (an inmate's freedom of speech, assembly and religion are limited; an ex-con in many states is prohibited from holding certain jobs, serving on a jury and running for elected office), the right to vote is supposed to receive our legal system's utmost protection because it is the fundamental democratic right that preserves all others. In fact, the Supreme Court has used this reasoning to strike down almost all formal barriers to the ballot box. Yet in a much criticized 1974 opinion, Richardson v. Ramirez, the court ruled that states could constitutionally disenfranchise offenders because of an obscure clause in the fourteenth amendment that, according to the Court, suggests states should not be penalized for disenfranchising citizens who participate in "rebellion, or other crime."
Since then, advocates for prisoners' rights and voting rights have virtually given up on the effort to enfranchise criminals, seeing it as a lost cause. Still, the legal establishment has been surprisingly supportive of voting rights for convicts. In 1981 the American Bar Association ambitiously recommended that "persons convicted of any offense should not be deprived of the right to vote." The American Law Institute's Model Penal Code says that convicts should be disqualified from voting only while imprisoned. Despite these guidelines, there is little hope for even a modest proposal like Representative Washington's (which applied only to non-imprisoned offenders and to federal elections) because criminals have neither political clout--note the Catch -22--nor any real base of advocates. Since suffrage for convicts can be won only on legal grounds, a new litigation strategy is needed that will circumvent the Supreme Court's dubious claim that states' disenfranchising laws are generally constitutional.
A novel yet promising strategy for civil rights advocates would be to use the Voting Rights Act, the federal law that prohibits racial discrimination in voting, to challenge the disparate impact of these laws on minorities. The Supreme Court itself planted the seeds for this strategy when it ruled in a 1985 decision, Hunter v. Underwood, that an Alabama law disenfranchising certain offenders was unconstitutional because it was adopted in 1901 with racist intent and continued eight decades later to have a disproportionate effect on blacks. (At the turn of the century, many Southern states used criminal disenfranchisement laws, along with literacy and property tests, poll taxes and grandfather clauses to restrict black suffrage.) As a challenge on constitutional grounds, Hunter, required a showing of discriminatory intent, but challenges brought under the Voting Rights Act do not require such evidence. When Congress amended the Act in 1982, it explicitly dropped the intent test in favor of a simpler results test. Now, a state election law or scheme violates the act if it results in a protected minority group having less opportunity to participate in the political process than any other group in the electorate. Presumably, then, a plaintiff need only trot out statistics showing the lopsided racial breakdown of a convict population that is denied the right to vote in a given state.
The numbers are fairly damning: In Illinois, where inmates are denied the vote, 63 percent of prisoners are black. Yet blacks make up only 15 percent of Illinois's general population. In New York, where offenders on parole are prohibited from voting, 49 percent of parolees are black and 31 percent are Latino. Blacks make up 16 percent, and Latinos 12 percent, of the total population of New York. In Florida, where convicts on probation are disenfranchised, 26 percent of probationers are black, and approximately 50 percent are Latino. Florida's general population is 14 percent black and 12 percent Latino. Although figures for ex-offenders are unavailable, one could extrapolate the racial breakdown of this population from numbers such as those presented above. (Those who argue that these skewed rates merely reflect crime patterns in these areas will have to explain away an extensive body of scholarship showing the pervasiveness of racial discrimination at every stage of our criminal justice system, including arrest, conviction and sentencing.)
States that disenfranchise criminals may try to counter evidence of disparate racial impact by arguing that they have a legitimate interest in keeping offenders out of the voting booth. But they won't get far. First, courts that hear Voting Rights Acts claims rarely give weight to a state's attempts to justify a law that violates the act's results test, particularly when the case deals with outright vote denial, as opposed to vote dilution caused by a districting scheme. Second, the justifications states offer for disqualifying criminals from the electorate are all weak or constitutionally problematic. States will come up short, whether they argue that disenfranchisement is part of a convict's punishment or a non-punitive attempt to protect the "purity of the ballot box"--an old yet common canard with racial overtones of its own.
Beyond the principle of universal suffrage, there are important reasons to let criminals vote. As a New York state inmate seeking the franchise recently wrote in a letter to the Daily News, "[voting] has rehabilitative attributes, as it gives the prisoner a sense of belonging, instead of confirming isolationist feelings toward society." Convicts and ex-cons could also use their votes to hold politicians accountable for inhumane prison conditions. (Liberal and progressive political candidates might even find a sympathetic constituency here.) Finally, guaranteeing the vote to criminals might have "rehabilitative attributes" for society at large, forcing us to rethink the barriers we erect between law abiding and law-breaking citizens, and exposing the stupidity of an anti-crime strategy that attacks criminals more than it attacks the causes of crime.
[Reprinted from The Nation, December 20, 1993, which reprinted it from the November, 1993, Yale Law Journal.]
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