“Universal suffrage” sounds good. No one, however, really supports it. Some humans cannot or should not vote: toddlers, the comatose, Icelanders changing planes at JFK. Still, some of us favor a much nearer approach to universal suffrage than do others. Here I will look at one possible extension of the franchise – to felons, whether they have served their entire sentence, are on parole, probation, or still in prison. A defense of voting rights for incarcerated felons, if successful, should imply extension of the franchise for other convicted persons, whatever their status in the criminal justice system.
Democracy is a
good thing, and the general idea of universal suffrage is well enough
established for us to take enfranchisement to be the default. The burden, then,
should be on the opponents of felon suffrage. What are the possible ways of
carrying that burden? Are they good enough?
In Canada, until
relatively recently, no incarcerated person could vote. That was found to
violate the Canadian Charter of Rights and Freedoms, and now all prisoners,
including felons, can vote. The same is true in several European countries. None
of these countries have been reported to have suffered any grievous harm as a
result.
In the US very
few inmates vote, and we have a lot of inmates, the highest number per
1,000 inhabitants in the world. (North Korea’s rate is unknown.) Most citizens in jail (pre-trial and short
sentences) are at worst convicted misdemeanants and are eligible to vote. They too
often never learn of their right. If they do learn, procedures for realizing
the right are either non-existent or difficult. For misdemeanor and pre-trial
prisoners matters could be improved with no legislation, but only some effort
by jail administrators and local election officials.
Convicted
felons, imprisoned, on supervised release, or with sentences completed are a
different story. With the exceptions of Maine and Vermont, those in prisons
(felons serving sentences usually longer than a year) are disqualified from
voting. For felons on one or another form of release voting disabilities are a
patchwork across the states. Kentucky
and Virginia disenfranchise permanently.
The Democratic Party platform of 2020 failed to call for an end to felon disenfranchisement, stating only that “the formerly incarcerated should not be blocked from exercising their voting rights.”(Emphasis added.) There was nothing on felon enfranchisement in the Republican Party platform because there was no Republican Party platform, but it is fair to say that Republicans are generally, and increasingly, opposed to refranchising even released felons. DeSantis and the Republican Party of Florida have succeeded in rendering largely ineffective a successful statewide re-enfranchising referendum. The Republican position is based on the crudest sort of political partisanship. “We’re opposed to restoring voting rights because felons don’t tend to vote Republican.” (Marty Connors, Alabama Republican Party Chairman.) Republican estimates about felon suffrage doubtless run through demographics. Keeping felons from voting disproportionately reduces the voting power of African Americans, Hispanic, and poor people.
Looking beyond
causes to rationalizations, what arguments have been offered for excluding
felons from the franchise?
(1) Disenfranchisement is appropriate
punishment.
(2) Felons shouldn’t vote because they have
demonstrated bad judgment.
(3) Felons have broken the implied contract
of democracy.
(4) Felon voting is unseemly.
In what follows, I am going to ignore that some convicted felons in fact committed no felony. False confessions, one witness identifications, over-charging by prosecutors, and bad luck do lead to innocent people being convicted, especially via plea bargains. Having seen the criminal process from the prosecution and defense sides, as a law clerk to a federal appellate judge, and as a teacher of criminal law and criminal justice process, I have no doubt that this happens, not all the time, but too often. It adds insult to injury that we deprive these victims of a substantial part of their citizenship.
However, the conviction of the innocent is an inevitable tragedy in any system of criminal justice. If there are compelling arguments that those convicted of felonies should not vote, those arguments may well survive the serious unintended consequence that the process sometimes disenfranchises innocent persons. Yet, the fallibility of the system is a further reason that we should insist that the arguments really be compelling and that the scope of the disenfranchisement extend no farther than those arguments truly support.
Punishment
Theory
I was tempted to
omit this section because there is some authority for the proposition that felony disenfranchisement is not punishment at all. In Green v. Board of
Elections, 380 F.2d 445 (1967), the Second Circuit of the US Court of
Appeals held that Green’s losing his right to vote after conviction for
organizing for the Communist Party was not punitive and so could not run afoul
of the attainder clause of the Constitution. The provision of the New York Election
Law that worked the cancellation of Green’s right to vote was not enacted
primarily as punishment, the court concluded, but to safeguard the election
against a ballot filled out by Green. (The
Supreme Court subsequently upheld the constitutionality of felony disenfranchisement
against a 14th Amendment equal protection challenge in Richardson
v. Ramirzi 418 US 24 (1974). The attainder clause challenge to
disenfranchisement, and so its punitiveness, was not before the Court in that
case, nor, I think, in any other.)
Still,
suspecting that there remain those who think that punishment is at least a
partial justification of felony disenfranchisement, I am going to touch briefly
on punishment theory. There are, to oversimplify a little, two polar positions.
The first is that criminal punishment is all about public safety. The second is
that it is all about meting out to criminal offenders what they deserve. Many
theorists have intermediate positions, blending public safety and retributive
elements, for example, by seeking maximum obtainable safety subject to the
constraint that offenders not be punished beyond their desert. (No capital punishment for shoplifters even if it would deter 99% of shopliftings.)
On the public
safety side, society’s chief ways of using punishment to try to control crime
are through deterrence, incapacitation, and reformation.
For deterrence,
disenfranchisement is of negligible effect. Even if they have heard of these
laws, potential offenders deliberating on commission of a crime and toting up
the risks of prison, loss of income, separation from friends and family, and
humiliation, just don’t ever get to the detail that they might lose their vote.
(The risk of losing their public office does occur to some of them. That
disability is often found in the same statute as disenfranchisement but is not my
concern here.)
Incapacitation is a justification for imprisonment of knife wielding subway muggers. If an otherwise fair sentence keeps them away from subways until they “age out” of the high-risk demographic for that conduct (which data shows they do fairly quickly) all the better.
Plea bargains
sometimes contain agreements never again to engage in a profession or
business, and convictions often trigger delicensure, either by statute or administrative
action, for example of physicians, lawyers, accountants, and stockbrokers. These
incapacitations, directly or indirectly the result of a criminal conviction, are
often well justified in terms of public safety. It makes sense to remove
offenders from the positions of trust in which they have shown themselves to be
dangerous.
In the case of
the pump and dump stock promoter, banning from the securities industry is
intended to prevent future stock manipulation crimes. What the disqualified
voter is kept from doing is not something criminal or dangerous. Voting is an
act of civic virtue, perhaps even a moral-political obligation. Counting the
ballot of the corrupt banker or the knife fighter is not going to put society
at any serious risk.
As far as reformation
goes, I can cite no relevant data, but find it facially implausible that enforcing
an official second-class citizenship for offenders forms any part of a sound
rehabilitative strategy.
Now for the other pole of punishment theory – mandatory retributivism. This is the view that society has a duty to impose deserved suffering on the offender.
Because loss of vote causes little or no suffering for most convicted
offenders, it is as poor a device in retributivism’s chamber of punishments as it
is a means of deterrence. To the limited extent that it does succeed in causing
the convict pain, it is very likely to contribute its bit to what is already
suffering beyond the retributive paradigm. At least this is true in the US where
most felony punishments are well beyond what is deserved by any measure.
I conclude that
if there is a justification for felon disenfranchisement it must lie elsewhere
than in criminal punishment theory and practice.
Untrustworthy Judgement
To commit a
crime is, with rare and special exceptions, to have made a bad judgment. It is
bad in a particular way. Offenders “put their own interest above that of society”
in a phrase often heard in criminal courtrooms. Should this sort of
demonstrated bad judgment preclude them from voting?
We may wish
that all voters would be socially minded, but a voter is certainly permitted to
vote for a school tax decrease because she has no children in school, to vote
for candidate A because he thinks A will bring about forgiveness of his student
loans, or to vote against candidate B because there is no chance B will award
the voter a contract to pave the city hall parking lot. If we don’t allow
people to vote because they are likely to put their own interest above that of
society, we don’t have a democracy. Meanly self-interested votes sometimes lead
to bad outcomes. Democracies don’t always get things right. Their defining
virtue is in the justness of their distribution of political power.
Could
felon-bad-judgment be concentrated by inmates of a prison located in a small
town who would combine to vote into office friendly town councilpersons who
were pledged to using town funds to provide treats for the prisoners? In the
only states in which they can vote in the US, imprisoned felons vote by
absentee ballot at their last address prior to incarceration. The ice cream for
inmates worry is misplaced.
(If you really
think that bad judgment ought to disqualify people from voting, the bankruptcy
court would be as fruitful a place to look as is the criminal court. Business
bankruptcies are frequently the result of egregiously bad judgment on the part
of management. The sort of bad business judgment involved typically has more in
common with political deliberations than does the bad judgment of, e.g. street criminals.)
by entering into
society every man "authorizes the society, or which is all one, the
legislature thereof, to make laws for him as the public good of the society
shall require, to the execution whereof his own assistance (as to his own
decrees) is due." [citing Locke, An Essay Concerning the True Original, Extent and End of Civil Government ¶ 89.] A man who breaks the laws he has authorized
his agent to make for his own governance could fairly have been thought to have
abandoned the right to participate in further administering the compact.
Green at 451
I am interested in this reasoning from the Second Circuit not
for its specific use in the Green decision, but as a sample application
of the social contract to felony disenfranchisement issue. Facially, it appears
as if the same argument would support taking the vote away from those who have
committed misdemeanor assault or have been ticketed for speeding or found
liable for slander in civil court. The social contract’s fine print is hard to
read as to just what breaches are sufficiently material to relieve the state of
its duty to let the citizen vote.
In addition to canceling the right to vote, does this
reasoning permit the state to forego police and fire protection for the breaching
party? The right to sue? To have a passport? To cross state lines? To practice
a religion or no religion? The penalty clauses of the contract are also not
easily read.
Perhaps I am focusing too much on the quotation from Locke,
which is of little help in answering these questions. The Second Circuit added
its own gloss to the effect that what the felon has abandoned is “the right to
participate in further administering the compact.” As the compact goes to “the
public good,” the scope of “administering” might be pretty broad, but it is not
crazy to think of its being restricted to the legislative, executive, and
judicial officers of the state and those with whom they directly interact in
carrying out state functions. This would support the disenfranchisements as well
as disabilities for public officials or employees of the state or officers of
the court. The right to sue would still seem to be in doubt as well as the
right to appear as a witness in court as these are integral to administering an
important part of the compact.
The word “contract” suggests that social contract theory has
something to do with strong binding force of actual agreement, but, of course,
it doesn’t. No one has ever signed any of the different contracts proposed by
theorists. Some have argued that there is tacit consent to the social contract,
indeed to all the laws and state procedures, by anyone who chooses to remain
within the state’s territory. This was always absurd. It would only begin to
make sense if local ties of friends, family, and life projects meant nothing,
no one were too poor or infirm for transnational relocation, a reasonable
number of foreign countries had open borders, and the potential states of
relocation were free of those laws of the home state that stimulated the postulated desire
to emigrate.
The most that can be claimed for social contracts is that
rational (variously understood) people would assent if they had right sort of
information (variously understood).
This is not to say that social contract constructions are
never illuminating or even persuasive on political issues. Let me turn to a version
of contract reasoning somewhat reminiscent of John Rawls, though in a setting he
would not have applied such reasoning, Suppose we were deciding whether we
would prefer to live in a country that disenfranchised felons or one that did
not. We do not know what our positions in the society will be, in particular,
whether we will be convicted of felony or not (a “veil of ignorance” on this
point.) We do know, however, the
probabilities, the number of convicted felons in the population (diverging here
from Rawls). We also know such relevant facts as disenfranchisement as a
deterrent (effectively zero) and as a rehabilitative measure (zero or
negative).
Making myself a subject in this thought experiment, I find I
would choose not to disenfranchise convicted felons. The small, but not tiny,
chance that I would be disenfranchised, be left out of political decision making,
be less than a full citizen, would be a serious negative on one side of the
scale. On the other side, on the possibility that after veil lifting I will
turn out not to be a convicted felon, I do not see any important benefit to me
or the society in this restriction of the franchise. I admit, however, that I
am not at all sure how the experiment to come out were you the subject. I doubt
that you would be any more convinced by it than by a showing, without veils, that
there is no sound argument for disenfranchisement.
It's Unseemly.
Some people have an intuition that convicted felons are just
not worthy to mix their ballots with ours. Not sharing this intuition, I can’t
do it justice. It seems to flow from an elevation of some notion of purity to a
very high normative status. It also seems in tension with both religious and
secular understandings that people sometimes go through real moral
transformations. The fact that only two US states, and very few peer nations,
disenfranchise for life suggests that the intuition that a felony conviction causes
a disqualifying moral stain is not widely shared.
We are not likely to see universal acceptance of universal
adult suffrage in the U.S., but it is not because there are good arguments con.
It is “because felons don’t
tend to vote Republican.” A considerable number of US population thinks that is
a fine reason. That it is an anti-democratic reason does not bother them. They
are buoyed by how easy it is to stir up fear of and hate against felons,
especially if they are of a different race.
Some Democrats
and independents share in the belief that convicted felons who are yet in
prison should not vote. Often this is based on nothing more than an unexamined,
if understandable, hostility to those who have done very bad things. It can be expressed via the
old retributivist refrain “They haven’t paid their debt to society until they
have served out their time.” If this can be turned into a compelling principled
argument for preventing the imprisoned from voting, I haven’t yet seen it.
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