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The Sentencing Project - Collateral Consequences, Testimony of ED Before US Commision on Civil Rights, 2017

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Testimony of Marc Mauer
Executive Director
The Sentencing Project
Collateral Consequences:
The Crossroads of Punishment,
Redemption and the Effects on
Before the U.S. Commission
on Civil Rights
May 19, 2017

Thank you for the opportunity to testify about the impact of collateral consequences on individuals
with felony convictions. I am Marc Mauer, Executive Director of The Sentencing Project, a
nonprofit research and advocacy organization based in Washington, D.C. I have written extensively
and presented legislative testimony on these issues, and was a co-editor of one of the first books to
explore these issues in depth, Invisible Punishment: The Collateral Consequences of Mass Imprisonment.
Today I will be addressing the issue of felony disenfranchisement and its impact on individuals with
felony convictions, but also its effects on American democracy. Disenfranchisement is one of a
number of policies that create barriers to successful reentry for individuals returning home from
prison. These include challenges to gaining employment, housing, public benefits, and other
services. With growing numbers of disenfranchised citizens these policies are now having a greater
impact on our society than at any point in our history.

Felony disenfranchisement policies are established by each state and consequently there is broad
variation in the impact on individuals with convictions. Two states, Maine and Vermont, do not
restrict voting by people with felony convictions, so prisoners are free to vote. The other 48 states,
and the District of Columbia, prohibit voting while serving a felony sentence in prison. Of this
group, 34 states also impose a voting ban on individuals under probation and/or parole supervision.
The 12 most restrictive states in the country disenfranchise not only those under current criminal
justice supervision, but also some or all after they have completed their sentence. In four of these
states – Florida, Iowa, Kentucky, and Virginia – anyone with a felony conviction is barred from
voting for life. In these states voting rights can only be restored through the action of the governor
or a pardons board.
Felony disenfranchisement policies can be traced back to the country’s founding, when they were
adopted as a continuation of the “civil death” policies of the Colonial era. While the founding of the
United States represented an experiment in democracy, it was a very limited one at the time. Wealthy
white male property holders granted themselves the right to vote, but excluded women, African
Americans, those who were illiterate, poor people, and those with felony convictions. Over the
course of two centuries these other prohibitions have been eliminated, but felony
disenfranchisement represents a key remaining obstacle to full electoral participation in society.

Coinciding with the dramatic growth of the criminal justice system in recent decades, the number of
individuals subject to felony disenfranchisement is now at a record high. In 1976 an estimated 1.1
million Americans were disenfranchised by these policies. Today that figure has grown to 6.1
million. In six states – Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia – more than
7% of voters are disenfranchised, led by Florida with one of every ten residents excluded.
As a result of the racial disparities that pervade the criminal justice system, disenfranchisement
effects are heavily skewed by race as well. Nationally, one of every 13 African Americans of voting

age is disenfranchised ( 7.4%), a rate four times that of non-African Americans. In four states –
Florida (21%), Kentucky (26%), Tennessee (21%), and Virginia (22%) – more than one in five
African Americans is disenfranchised.
An additional challenge relates to the 700,000 people incarcerated in local jails throughout the
country. The vast majority of this population is eligible to vote since they are either awaiting trial or
are serving misdemeanor sentences, but have not been convicted of a felony. Yet while this group is
legally eligible to vote, in practice there are just a handful of jails nationally that provide assistance in
securing absentee ballot access. Thus, this de facto disenfranchisement compounds the impact of
excluding incarcerated people from the ballot.
Recent scholarship also suggests that incarcerating people in a community at high rates “has
important spillover effects that suppress participation not only of the incarcerated individual but also
of those living around him or her.”1 This decline in community engagement can be seen in lower
rates of voter registration and turnout, as well as reduced levels of volunteer activity and group

While disenfranchisement raises fundamental questions about democracy the effect of such largescale exclusion is also a concern for reentry and public safety goals. Of the total disenfranchised
population of 6.1 million, three-quarters (77%) are not incarcerated. Many of these individuals have
been previously incarcerated and are now living in the community. They are expected to abide by
the rules and regulations of society while they establish themselves in the workplace, school, family,
and community.
A critical factor in achieving successful reentry is developing connections with supportive
institutions in the community, including participation in the electoral process. Thus, when
disenfranchisement is applied to this group of people the message that comes across is essentially
that despite their engagement in the community they are still “second class citizens.”
There is limited research to date on the effect of such exclusion on public safety, but a Minnesota
study sheds light on these outcomes. Using self-reported data on crime and arrest involvement,
researchers found that among young adults who had been previously arrested, 27% of non-voters
were rearrested compared to 12% of voters. While the authors recognize that “the single behavioral
act of casting a ballot is unlikely to be the sole factor that turns felons’ lives around,” they
nonetheless conclude that “the act of voting manifests the desire to participate as a law-abiding
stakeholder in a larger society.”2

Traci Burch (2013). Trading Democracy for Justice. University of Chicago Press, 102.
Christopher Uggen and Jeff Manza (2004). “Voting and Subsequent Crime and Arrest: Evidence from a Community
Sample,” in Columbia Human Rights Law Review, Vol. 36, No. 1, 213.


As is true of American criminal justice policies generally, disenfranchisement policies in the U.S. are
far more restrictive than in comparable nations. Among other industrialized nations, many do not
impose any restrictions on people with felony convictions, including those in prison. And of those
that do impose a ban this is almost always solely limited to the period of incarceration, with
automatic restoration upon release.
Legal cases brought in a range of nations have largely upheld the right to vote for prisoners as well.
Constitutional courts in Canada, South Africa, Israel, and the European Court of Human Rights
have essentially ruled that the fundamental rights of citizenship should not be abridged as a result of
a criminal conviction.

Over the past two decades 24 states have enacted reforms to disenfranchisement policies. In a
number of states these reforms have eliminated various categories of felony disenfranchisement. In
New Mexico, for example, the legislature ended the prohibition on voting post-sentence, and
Delaware has done the same for almost all offense categories.
Several states have extended voting rights to individuals currently under community supervision.
Connecticut granted probationers the right to vote in 2001 and Rhode Island voters approved a
ballot measure to enfranchise persons on probation or parole in 2006. Maryland legislators first
repealed the ban on voting post-sentence and subsequently extended voting to those on probation
or parole last year.
In several states with lifetime bans on voting gubernatorial action has extended voting rights to
people who have completed their sentences. In Iowa Governor Tom Vilsack restored voting rights
to all ex-felons in 2005, and Virginia Governor Terry McAuliffe is in the process of doing so for an
estimated 200,000 residents of that state. Governors in Florida and Kentucky have restored the right
to vote in thousands of similar cases in their states. Note, though, that these executive actions do
not change the underlying lifetime ban in these states, and in three of these four states – Iowa,
Florida, and Kentucky – succeeding governors have repealed the policy of their predecessors.

Felony disenfranchisement policies represent an antiquated restriction on democratic participation
that should have no place in 21st century America. Various rationales have been advanced to support
the need for such policies, but without any convincing evidence.
Over many years I have spent a good deal of time in prisons engaging in conversations with a broad
range of inmates. Some have little concern about politics, but many have a strong interest in
government policies. Whether the issue is taxation, abortion, defense spending or any other topic, I
hear the same range of opinions that we hear among the general population. Felony

disenfranchisement is also problematic in establishing an environment in which a concerned parent
is not able to cast a vote in a school board election that will directly impact the quality of his or her
child’s education.
Felony disenfranchisement policies run counter to public safety objectives by creating a group of
second-class citizens. In order for people to successfully transition home from prison they need to
establish or renew connections with the world of work, family, peer groups, and the broader
community. Participation in the electoral process is one means by which citizens can affirm their
connection to the broader community and play a constructive role in public policy debates.


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