Current felon disenfranchisement policies reflect punitive American attitudes and court deference to legislatures in punishment. Since the 1970s, the American criminal justice system has moved toward harsher punishments, in stark contrast to trends in Western industrialized nations. Thus, even as the world has moved toward increased electoral enfranchisement, felon disenfranchisement has remained relatively constant in America. Despite clear evidence that many disenfranchisement policies are artifacts of racial discrimination, only a handful of felon disenfranchisement challenges have been upheld. Courts have typically refused to subject felon disenfranchisement policies to strong constitutional tests, such as strict scrutiny. Likewise, they refuse to look for disparate impacts on populations alone, absent a clear discriminatory intent. Facially neutral disenfranchisement laws have consistently been approved, despite the dilution of minority voting populations. As a consequence, courts have rubber-stamped pretextual tools of exclusion and allowed for the possibility of racial politics.
Although American felon disenfranchisement policies continue to receive broad political support, few criminologists, criminal justice researchers, and/or legal scholars support them, because little empirical evidence suggests that they are effective. Such policies serve as barriers to civic reintegration and are, at least in theory, criminogenic. There is a clear need for a nationwide, longitudinal study of the effects of felon disenfranchisement over time, which might help disentangle the effect of felon disenfranchisement on criminality. Nevertheless, the existing evidence suggests that felon disenfranchisement policies are counterproductive, irrational, and sometimes pretextually discriminatory. Unfortunately, these policy implications have been largely ignored by courts and lawmakers, in part because of the normative nature of discourse surrounding felon disenfranchisement.
Perhaps most disturbingly, felon disenfranchisement has disproportionately affected marginalized economic groups. Often, the parties opposing increased enfranchisement have been the same parties benefiting from disenfranchisement, suggesting that criminal justice policy is, at least partly, a Foucaldian political tool. The consequences of disenfranchisement on affected groups can be long lasting and harmful. If a key goal of effective criminal justice policy is reintegration, then disenfranchisement is pernicious thereto. Cohen (1985) theorized that the strength of social control is related to both formal and informal social control, which together can be conceptualized as an interlocking web. The strongest systems of social control result from effective formal social control measures, accompanied by effective informal social control, which itself may be affected by public perceptions of the legitimacy of formal social control measures. Merton (1936) argued that formal actions, such as laws, regulations, and policies, can have unintended consequences. Assuming, for purposes of argument, that both theorists are correct, felon disenfranchisement may be conceptualized as a purposive attempt at formal social control, accompanied by unintended negative consequences. The disenfranchisement of marginalized groups has disincentivized reintegration, which served no useful public purpose. Likewise, such disenfranchisement may have lowered the adversely affected groups’ perceived legitimacy of the criminal justice and political systems, thereby reducing overall social control.
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