II. History of Felon Disenfranchisement
As a practice, felon disenfranchisement has ancient roots (“The Disenfranchisement of Ex-Felons,” 1989; Johnson- Parris, 2003; Manza & Uggen, 2004). In ancient Greece, offenders pronounced “infamous” were ineligible to vote, appear in court, attend assemblies, or serve in the military. In ancient Rome, infamous Romans lost suffrage and military service rights. In Anglo-Saxon England, outlawed offenders lost all rights to legal protection for life and property. In post-Norman England, “attainted” offenders— those convicted without trial by the legislature under bills of attainder—lost their civil rights to own property. The English-derived felon disenfranchisement tradition is based on the feudal doctrine of corruption of the blood, a legal fiction wherein the disenfranchisee and his or her entire family are presumed unworthy of the body politic. Most colonial governments adopted British statutes and common law wholesale and therefore inherited felon disenfranchisement policies with neither debate nor explicit justification. Enfranchisement was typically limited to white male property holders. Typical statutes permanently forbade felons from voting and holding public office, although felons could testify and hold property.
Post-independence America’s felon disenfranchisement trends are unique in the modern world. The general trend worldwide has been to eliminate permanent voting restrictions (Manza & Uggen, 2004). Similarly, the general American trend has been toward increasing electoral enfranchisement, as evidenced by ratification of the Fifteenth (1870) and Nineteenth (1920) Amendments and passage of the Voting Rights (1965) and National Voter Registration (1993) Acts, passage of motor-voter laws, and the elimination of Jim Crow voting literacy tests. By contrast, there has been no clear trend toward inclusion in American felony disenfranchisement laws, in part because of the absence of any national standard allowing each state to establish its own policy. In general, prisoner disenfranchisement increased from 1860 to 1880 and remained steady thereafter. Likewise, probationer disenfranchisement spiked over roughly the same period and remained consistent for nearly a century.
After the Civil War, felon disenfranchisement became increasingly significant as a tool to marginalize African American political power, following voting privileges granted by the Fifteenth Amendment (Johnson-Parris, 2003). Felon disenfranchisement laws had originally emerged as artifacts of British law adopted by some colonial governments along with all British common law without recorded discussion. Unsurprisingly, colonial legislative records typically offered no clear rationale in favor of felon disenfranchisement. In 1790, just 3 of 13 states forbade non-white suffrage. By 1800, most states had restricted suffrage to white male property owners, and by 1840, 20 of 26 states had done so. In light of the possibility of slave uprisings and high proportions of slaves in the general population, antebellum slave states created explicit formal systems for slave restrictions, typically forbidding voting, mobility, property rights, and education. The infamous Dred Scott (1857) decision rubber-stamped the total disenfranchisement of African Americans by declaring them chattel without the possibility of citizenship.
However, in the post-Reconstruction South, southern whites faced the loss of political hegemony, which they countered by a matrix of formal and informal systems of social control, such as Jim Crow laws, voting literacy tests, interracial marriage bans, segregationist institutions, and racist norms. Because African American voting privileges could not be limited by explicit legislation, under the Fourteenth and Fifteenth Amendments southern whites fashioned facially neutral but racially pretextual legislation to reduce African American voting influence.
Many felon disenfranchisement laws were passed for the first time in the late 1860s and the 1870s, when African American suffrage first emerged (Behrens, Uggen, &Manza, 2003). Just as slaves had been, ex-slaves were perceived as both threats to white rule and potential resources (Adamson, 1983). Post-Reconstruction white supremacy advocates preyed on the prejudices and fears of their constituents to promote ideology and harsh treatment for ex-slaves:
Real or imaginary threats to community order will give rise, on the one hand, to harsher treatment of those individuals or groups singled out as threats, and, on the other hand, will increase group solidarity. One of the ideological techniques used by the Democrats to gain control over southern legislatures in the 1870s was to brand the radical Republicans as traitors. The Redeemers played on the fears of the southern white population, describing the alliance of carpetbaggers, scalawags, and blacks, who were exercising their newly acquired right to vote and thereby keeping the Republicans in power, as a corrupt plot. The very foundations of southern civilization were allegedly threatened by the radical Republican state governments. (Adamson, 1983, p. 563)
Legislative records frankly acknowledged the utility of felony disenfranchisement laws in restricting African American suffrage. For example, non-whites made up just 2% of Alabama’s system in 1850 but 74% by 1870 (Manza & Uggen, 2006, p. 57), allowing for a convenient tool for excluding minority voters. Independently, the passage of restrictive felon disenfranchisement laws has been correlated with the presence of minorities: Between 1850 and 2002, states with higher proportions of non-whites passed more restrictive felon disenfranchisement laws, even when controlling for potential confounds of time, region, interracial economic competition, and punitiveness (Manza & Uggen, 2004, p. 493). As a consequence of the package of civil rights restrictions,African American voting influence dropped dramatically nationwide: for example, from 70% eligibility in Mississippi in 1867 to 6% in 1890 (Johnson-Parris, 2003).
Felon disenfranchisement laws thus expanded contemporaneously with the Black Codes and may be accurately viewed as a package of formal social control measures aimed at perpetuating, or reinstituting, the antebellum status quo. The Black Codes helped segregate ex-slaves, force them into hiring-out/sharecropping systems, and prosecute violators, who were often individuals who broke labor contracts. Particularly in areas with high concentrations of ex-slaves—the legacy of intensive slavery in southern states—African American voters were potential threats, particularly if they organized to form an effective voting bloc. The effect of these new measures was to help keep ex-slaves in their preslavery status, that is, “propertyless rural laborer[s] under strict controls, without political rights, and with inferior legal rights” (Stampp, 1965, p. 79).
America’s century of rising incarceration rates has dramatically expanded felon disenfranchisement’s scope. Incarceration rates nearly doubled from 1925 to 1980 but quadrupled from 1980 to 2000 (Manza & Uggen, 2006). As a consequence, while 75 Americans per 100,000 were incarcerated in 1925, nearly 480 Americans per 100,000 were incarcerated in 2000. America’s incarceration rates lead the world and are quintuple those of England and Wales. The consequence of the increased use of incarceration is a corresponding linear increase in disenfranchisement rates. The increase becomes more disturbing when one considers that, in many states, felon disenfranchisement continued after release from criminal justice supervision.
Currently, America is among only a handful of countries worldwide that disenfranchise unincarcerated felons. Although the modern-day scope of American felon disenfranchisement is in flux, several clear trends have emerged since 1950 (Manza & Uggen, 2004, p. 493). First, nearly all American states continue to exclude prisoners from voting, a figure that has actually increased 10% to its current total of 48. Although the majority of states exclude active probationers and parolees from voting, state exclusion rates decreased substantially from 1950 to 2002 (from 84% to 58% and from 84% to 70%, respectively). Although 70% of states permanently disenfranchised felons in 1950, less than 30% did so by 2002. In sum, although prison disenfranchisement has remained nearly ubiquitous, felon disenfranchisement, in its other forms, has exhibited consistent decreases over time.
Perhaps the most startling fact of felon disenfranchisement has been its explosive growth. In lockstep with the burgeoning incarceration rates since 1980, the criminal justice system has cast an increasingly wide net:
All categories of correctional populations—prisoners, parolees, jail inmates, and probationers—have grown at astounding rates since the 1970s. . . . [A] total of 7.0 million people were under some form of correctional supervision in 2004, relative to 1.8 million as recently as 1980. Prisons and jails in the United States now house more than 2.2 million inmates, representing an overall incarceration rate of 726 per 100,000 population. . . . By comparison, approximately 210,000 were imprisoned in 1974, or 149 per 100,000 adult U.S. residents. In 1980, there were only 1.1 million probationers and 220,000 parolees, compared to more than 4.1 million probationers and 765,000 parolees in 2004. (Uggen et al., 2006, p. 285)
Thus there are now far more disenfranchised individuals than ever before.
Felon disenfranchisement affects over 5millionAmericans (Manza & Uggen, 2004). Despite formal tallies, the actual scope of felon disenfranchisement remains a dark figure. The nearly 300,000 inmates serving jail time for misdemeanors and over 300,000 unconvicted pretrial detainees typically cannot vote because of incarceration. Likewise, many otherwise eligible felons may be unaware, because of ignorance, of the restoration of their voting rights (Uggen & Manza, 2004a). Reflecting state variations in policy and demographics, some states disenfranchise far larger voting populations than others. Florida, for example, disenfranchises over 1 million people, whereas two states disenfranchise none.
The astounding increase in disenfranchisement has had a magnified effect on marginalized socioeconomic groups, such as African Americans, who are disproportionately marginalized. One in 6 African American men cannot vote (Manza & Uggen, 2004). Felon disenfranchisement effects go beyond this relatively high figure, however, if, as estimated, 1 in 3 African Americans will go to prison during their lifetimes (Bonczar, 2003).
Correctional surveys have consistently identified a Democratic skew in felon disenfranchisee preferences. According to the Survey of Inmates of State Correctional Facilities (U.S. Department of Justice, 2000), in every presidential election from 1972 to 2000 correctional populations favored Democratic candidates, with values ranging from 66.5% (President Jimmy Carter, in 1980) to 85.4% (President Bill Clinton, in 1992). In other words, at least two thirds of all prisoners favored Democratic candidates, with popular Democrats receiving support from 6 of 7 prisoners. Resolving how many disenfranchised voters would have actually voted was problematic, however, in several ways. First, almost every state disallowed prisoners from voting and, because many potential Democratic voters remained incarcerated, they would have been unable to vote. Second, it appears unlikely that America’s voter policy toward incarcerated individuals will change in the short term; in other words, incarcerated individuals will be unlikely to vote over the next generation. Further complicating voting estimation is the fact that disenfranchised felons may have been less likely to vote than general voters. Because disenfranchised felons comprise a unique segment of society, they could not be assumed to have mirrored national turnout rates.
Using a counterfactual research strategy, Manza and Uggen (2006) examined whether felon disenfranchisement affected past elections:
Would election outcomes have differed if the disenfranchised had been allowed to vote? To fully answer this counterfactual question, we must determine how many felons would have turned out to vote, how they would have voted, and whether those choices would have changed the electoral outcomes. If so, a closely related consideration is whether disenfranchisement has affected public policy through feedback processes tied to these electoral outcomes. (p. 782)
Manza and Uggen (2006) adopted a two-part strategy for estimating felon disenfranchisement voter turnout and choice. First, they matched the felon population to similarly situated voters in the voting-age population and assumed that the felons would demonstrate similar voting characteristics, based on National Election Study data. Second, they estimated voting preferences using data from the Survey of Inmates of State Correctional Facilities Series (U.S. Department of Justice, 2000). They concluded that disenfranchisement policies altered the outcome of the 2000 election. In addition, controlling for changes in conviction rates over time, existing policies and demographics would have cost the Democrats the 1960 and, possibly, the 1976 presidential elections, which were relatively close. Of the over 400 senatorial elections from 1978 to 2002, Manza and Uggen found that seven outcomes would likely have been reversed if not for felon disenfranchisement.Although these outcomes represented a small minority of overall elections, they were significant overall considering the U.S. Senate’s chronically narrow party margins.
There is a conspicuous absence of felon disenfranchisement research into voter preferences of probationers and parolees, who are more likely to be enfranchised in the future than prisoners. Instead, prisoner surveys have typically been used as a means of inferring probationer/parolee preferences. Such estimates suffer from an obvious confound in that probationer/parolee preferences may differ from prisoner preferences. Also, such estimates may be inaccurate because they fail to account for geographical diversity. Prisoners tend to be concentrated in various locales across states and often are housed outside their domiciles. Consequently, such surveys may not be predictive of disenfranchisement trends in particular counties, in particular those involving urban and rural contrasts. Surveys of probationer/parolee preferences, including voting preferences and turnout likelihood, would potentially provide more accurate measures of voting disenfranchisement effects. The importance of direct surveys is underscored by the quadrupling of probationers and parolees from 1980 to 2004 (Uggen et al., 2006).