V. Sociology of Law Explanations
Sociology of law explanations of felon disenfranchisement are descriptive and not prescriptive in that they typically ignore the relative merits of felon disenfranchisement rationales while focusing on the underlying causes of the policies themselves. Functionalist theory, social distance theory, conflict theory, and culture of control theory provide four influential theoretical explanations for felon disenfranchisement, which are considered in order.
Talcott Parsons’s (1951, 1952/1954, 1982) functionalism, the dominant American sociological perspective until the 1960s, analogizes any social system to an organism, which depends on specific organs to carry out specific functions necessary for the organism’s survival. Under functionalism, any system, including the criminal justice system, can be divided into four interdependent subsystems corresponding to (1) economy, (2) policymaking, (3) policy enforcement, and (4) norm transmission/pattern reinforcement spheres. Should any subsystem’s functions fail, all the subsystems would fail. For example, the failure of the economy would lead to the collapse of the other subsystems. Policymakers are individuals who have accepted the role of legislators. In playing their roles, the legislators employ means–end reasoning and rationality to devise policies to support the three subsystems. For example, a legislator may support a law in favor of felon disenfranchisement if the legislator decides, in his or her role as policymaker, that felon voting is bad policy that might adversely affect the independence of the policymaking subsystem or the efficacy of the policy enforcement subsystem. Functionalist analysis lends itself to consideration of the relative merits of felon disenfranchisement policies. The oft-criticized weakness of the functionalist approach, however, is that policymakers are not always disinterested, rational decision makers working in unison for the public good; instead, their decisions are inextricably bound with their personal interests and prejudices and often in direct conflict.
In social distance theory, Donald Black (1970, 1979, 1998, 2000) has argued that social distance between individuals increases the likelihood and extent of formal social control between them. Unlike physical distance in a multidimensional physical environment, social distance is socially constructed and corresponds to the perceived configurations of individuals in social space. For example, individuals of similar socioeconomic status and cultural backgrounds may perceive themselves as socially close, whereas individuals of divergent status and cultural backgrounds may perceive themselves as socially distant. Black predicted that social distance affects macrolevel behaviors, such as law making and law invoking. Unlike gravity, social repulsion actually increases with social distance. Thus, Black predicted that the greater the social distance between two groups, the more likely that one group will create and invoke laws regulating the interaction between the two groups. Black (1998, p. 144) argued that moralism can be a consequence of extreme social distance:
A tendency to treat people as enemies . . . Moralism is a direct function of social remoteness and superiority. Those with the strongest partisans tend to be socially close and superior, while those with the greatest enemies tend to be socially remote and inferior. (p. 144)
In Blackian terms, felon disenfranchisement is the result of extreme social distance between felons and policymakers and their constituents, which in turn leads to feelings of moral superiority justifying exclusionary laws. In other words, the laws themselves are not necessarily justified by public policy rationales but exist because of social distance factors.
Although Karl Marx is famous for his thesis that economics drives political development (Tucker, 1978), modern Marxist thought has morphed into a more general tool of analysis, conflict theory, wherein individuals and institutions interact with each other on the basis of self-interest, often driven by an underlying process that is not necessarily apparent to observers (see, e.g., Adamson, 1983; Coker, 2003). Because rational, self-interested actors strive to maximize benefits, and such benefits may occur at the expense of others, individuals and institutions eventually will come into conflict, the end result of which is often conflict and coercion. The empowered will be able to actualize their interests, whereas the powerless will be coerced into accession. In conflict theory terms, felon disenfranchisement is predictable because the empowered legislators tend to be wealthy and supported by the wealthy and the middle class, both of whom disfavor felons as a class. Regardless of the theoretical explanation of felon disenfranchisement, an incontrovertible factor in America’s felon disenfranchisement policies is that felons as a rule have relatively little influence in the political marketplace. As a class, felons are typically poor, and their legal status is associated with decreased economic opportunities for both them and their families. Support for felons may cause a politician to be perceived as “soft on crime” and is not politically expedient, especially considering that such felons cannot vote. Thus, regardless of the relative merits of rationales in favor or against felon disenfranchisement, the policies themselves are dictated by the calculi of self-interest.
Like Blackian theory, conflict theory itself lends itself to insidious interpretations of felon disenfranchisement. In arguably the most famous modern expression of conflict theory in criminal justice contexts, Michel Foucault argued that underlying the modern criminal justice system is a technology, discipline, aimed at the production of docile bodies, or mind control. Although the discipline’s proponents assert that the technology itself is oriented toward public safety and treats everyone equally, the technology itself is focused on what policymakers perceive as groups that threaten their power base, such as terrorists, felons, or potentially even minority groups. If certain elected officials predict that felons and African Americans would not support their reelection, these same officials would likely oppose felon enfranchisement, regardless of public policy justifications. The criminal justice system itself thus becomes a tool for the maintenance of one group’s coercive power over another.
In culture of control theory, Garland (2002) elaborated on Foucault’s arguments, asserting that, since 1970, America has entered into a new punitive phase, wherein policymakers and their public have largely rejected the rehabilitative ideal in favor of an actuarial model wherein offenders are viewed as risks to be guarded against via formal and informal social control measures. Individual safety is of paramount importance, while offender rights and life experiences are discounted. Incarceration and physical separation from offenders are viewed as desirable in that they reduce public risk. As a consequence of this new culture of control, Americans are resisting international trends toward felon enfranchisement.
Theoretical explanations are not justifications and typically contain no moral dimension of “oughtness.” They suggest why felon disenfranchisement laws exist without justifying the latter’s existence. Nevertheless, these theoretical perspectives provide useful frameworks for evaluating proposed rationales. Whereas a functionalist perspective might take a claimsmaker’s policy justifications at face value, other perspectives (see, e.g., Coker, 2003) would question the claimsmaker’s underlying motivations. For example, social distance and conflict theorists would agree that a claimsmaker’s policy justifications may serve as pretextual covers whereby a claimsmaker can self-justify acting on his or her prejudices and self-interest. Consistent with social distance and conflict theories, early American felon disenfranchisement laws appear to have resulted from a conscious desire to oppress minorities, even though they were drafted as facially neutral, targeting no specific group other than felons.