Felon Disenfranchisement

IV. Policy Rationales and Their Empirical Assessment

Legalities aside, felon disenfranchisement’s utility remains problematic. Modern proponents have marshaled numerous nondiscriminatory rationales in favor of felon disenfranchisement, some of which have been subject to empirical assessment. Standard rationales for continued disenfranchisement fall into three general categories: (1) crime reduction/deterrence, (2) retribution, and (3) system efficiency. In the sections that follow, each category is presented and critically evaluated.

A. Crime Reduction/Deterrence

Felon disenfranchisement has been rationalized as a crime prevention tool in that the threat of such a legal sanction serves as a deterrent to future crime. In other words, a rational actor would view the risk of disenfranchisement as a disincentive and therefore exhibit a decreased likelihood of committing crime. However, no extant research supports a deterrent effect. To establish a clear deterrent effect would require a longitudinal data set with voting rights, conviction records, and postdisenfranchisement conviction records, as well as suitable control variables.

Critics counter that felon disenfranchisement is actually criminogenic (see, e.g., Cholbi, 2002). Viewed in the broader context of criminological and criminal justice theory and research, a deterrence rationale seems farfetched. Even extreme punishments such as the death penalty have exhibited no deterrent effects on crime. Moreover, offenders frequently exhibit low self-control, which may lead them to ignore long-term effects (e.g., disenfranchisement) in favor of short-term gratification. The assumption that all prospective offenders are even aware of the electoral consequences of criminal convictions is dubious. In any event, high-criminality offenders tend to have weak social bonds and may discount the value of enfranchisement. Similarly, felon disenfranchisement may increase criminality by impeding civic reintegration and thereby weakening social bonds. Using longitudinal data, for example, Uggen and Manza (2004b) found that individuals who voted were less likely to commit crimes. However, the finding was weakened by reliance on self-report voting and criminal behavior as controls to simulate the effect of enfranchisement on criminal behavior. In other words, the study did not actually test the effect of prospective disenfranchisement on future criminality; neither did it directly test the effect of past disenfranchisement on future criminality.

B. Retribution

Felon disenfranchisement is often justified as retribution, which is itself supported by normative discourse. Such rationales typically assert that felons have violated group norms and therefore deserve punishment (Altman, 2005) or at least are justifiably disenfranchised during imprisonment (Lippke, 2001). While ignoring deterrence considerations, modern retributive rationales typically do not support punishment as an end in itself but rather as an expression of group will, which itself serves a useful, integrative purpose by establishing clear boundaries of acceptable behavior and thereby fostering group cohesion. A retribution rationale implicitly assumes that there is widespread community support for felon disenfranchisement. Perhaps more important, retribution brings satisfaction to victims of crime, which is an underestimated purpose of criminal justice systems. Following this reasoning, felon disenfranchisement as retribution may strengthen group solidarity and norms while increasing victim satisfaction.

The broad scope of current felon disenfranchisement policies has received only mixed public support. In general, there is widespread support for felon disenfranchisement for felons serving active prison sentences (Cholbi, 2002). However, public support for felon disenfranchisement typically varies by offender status and conviction type.Although there is strong public support for felon disenfranchisement of prisoners and offenders who have committed certain serious or violent felonies, 80% of the public favor reenfranchisement for felons after completing their criminal justice supervision (Manza, Brooks, & Uggen, 2004).

Unfortunately, no research has found benefits flowing from disenfranchisement. Proponents typically argue in philosophical or moral terms but lack any empirical basis to assert that disenfranchisement strengthens norms or group solidarity. By contrast, however, critics charge that such policies are unfair and immoral in that there is a clear disproportionate impact on minorities, specifically African Americans. In 1998 elections, for example, at least 10 states formally disenfranchised 20% of African American voters (“Felony Disenfranchisement,” 1999).

Proponents have argued that felon disenfranchisement is not a punishment at all but a civil action (Deigh, 1988), which may obviate the need for standard punishment justifications or legal analyses. Though effective in legal contexts, such arguments seem implausible and/or like splitting hairs in other normative contexts, because the loss of a right or privilege as the result of criminal behavior typically qualifies as punishment. In addition, felon disenfranchisement policies make no distinction for offense severity, counterintuitively treating minor and major felonies equally. Critics (see, e.g., Cholbi, 2002) have argued that felon disenfranchisement policies would be more rational if they accounted for offense severity, although justifying such distinctions or gradations among felonies would prove problematic.

C. System Efficiency

Harkening back to feudal doctrines, a common rationale for felon disenfranchisement is based on social contract and moral competence. The felon, it is argued, has violated the social contract and is thereby excluded from the privileges of the body politic (Johnson-Parris, 2003). A related argument is that such exclusion is necessary and justified to ensure the efficient working of the political system, or the purity of the ballot box (Manza & Uggen, 2006). Allowing felons to vote would presumably compromise the independence and integrity of the criminal justice system.

Proponents of ballot box purity appear to base their support of felon disenfranchisement on unproven assumptions. Even if felon disenfranchisement were allowed, it is by no means clear that previously disenfranchised felons would base their voting preferences on a candidate/party’s penal policy:

No evidence suggests that ex-felons would base their votes solely, or even partially, on a candidate’s positions on penal issues rather than other matters of policy and politics. Furthermore, even if ex-offenders were to base their votes on matters of criminal justice, it does not follow that their positions on these matters necessarily would be more permissive than those of the population as a whole. (“The Disenfranchisement of Ex-Felons,” 1989, p. 1303)

In other words, if the point of disenfranchisement is to protect the integrity of the criminal justice system, it is by no means clear that disenfranchisement would do so, casting doubt on the significance/utility of excluding felons from voting.

By contrast, critics have argued that excluding mass numbers of felons impairs, rather than promotes, system efficiency, in that the broad scope of felon disenfranchisement results in democratic contraction (Uggen & Manza, 2002). The exclusion of African American voters has impacted close election outcomes, such as the 2000 presidential election and Kentucky’s 1984, 1992, and 1998 senate races. In the last, Republican Jim Bunning defeated Democrat Scott Baesler by 7,000 votes; however, Kentucky’s felon disenfranchisement laws at that time permanently excluded felons from voting, eliminating 6,000 African American prisoners and 7,600 African American probationers and parolees, as well as thousands more permanently disenfranchised African American voters. In the election itself, the vast majority of African American voters voted Democratic (“Felony Disenfranchisement,” 1999). Afterward, Kentucky amended its policy to ease felon reintegration by allowing felons to apply for reenfranchisement. Unsurprisingly, however, Kentucky Republicans, such as Senator Mitch McConnell, have continued to support felon disenfranchisement (Manza & Uggen, 2006, p. 12). As a barrier to reenfranchisement, Republican Governor Ernie Fletcher ordered that felons be required to write an essay, which resulted in a slower rate of reenfranchisement and favored Republicans. His successor, Democratic Governor Steven Beshear, eliminated the essay requirement altogether, which favored Democrats.

Perhaps most disturbingly, the racial skew of felon disenfranchisement has only widened since President Ronald Reagan’s war on drugs. Drug incarceration rates increased faster than any other incarceration type during the past quarter century. Whereas drug crimes accounted for 10% of incarcerations in 1974, by 1997 they comprised 26% (Uggen et al., 2006). Much of the increase resulted from crack cocaine interdiction efforts, which disproportionately involved African Americans. African American incarceration rates, which were already higher than white rates, increased approximately 275% from 1980 to 2004, whereas white rates increased less than 100% over the same period.

Compounding system impairment are the formal and informal collateral consequences of felony convictions, which severely impact an offender’s life chances. Incarcerated felons typically leave prison with little or no money. While incarcerated, their families suffer economic hardships. Upon release, ex-felons face difficulties in securing employment, and certain professional jobs are forever closed to them. A felony record carries a permanent social stigma. Felon disenfranchisement provides yet another barrier to civic reintegration. Overall, an ex-felon’s reduced opportunities have an intergenerational character that affects the life chances of their children, because being an ex-felon provides them with less social capital.

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