Felony disenfranchisement in the United States

Felony disenfranchisement in the United States is the disfranchisement due to conviction of a criminal offense, usually restricted to the felony class of crimes, or more generally crimes of incarceration for a duration of more than a year and/or a fine exceeding $1,000. Jurisdictions vary as to when they make such disfranchisement permanent, or restore suffrage after a person has served a sentence, or completed parole or probation.[1] Felony disenfranchisement is one among the collateral consequences of criminal conviction and the loss of rights due to conviction for criminal offense.[2]

Proponents have argued that persons who commit felonies have broken the social contract, and have thereby given up their right to participate in a civil society. Some argue that felons have shown poor judgment, and that they should therefore not have a voice in the political decision-making process.[3] Opponents have argued that such disfranchisement restricts and conflicts with principles of universal suffrage.[4] It can affect civic and communal participation in general.[1] Opponents argue that felony disenfranchisement can create political incentives to skew criminal law in favor of disproportionately targeting groups who are political opponents of those who hold power.

  Unrestricted
  Ends after release
  Ends after parole
  Ends after probation
  Circumstantial
  Individual petitions required

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Main article: Disenfranchisement

The United States is among the most punitive nations in the world when it comes to denying the vote to those who have been convicted of a felony offense.[5][6]

Three waves of felony disenfranchisement can be identified, including laws before, during and after the Civil War. The first felony disenfranchisement laws were introduced in 1792 in Kentucky.[7] Four states had felony disenfranchisement policies in 1840; however, by the time of the Civil War, about twenty-four states had some form of felony disenfranchisement policy or similar provisions in the state constitution.[8] This number increased to twenty eight (out of thirty eight states) in 1870.[9]

The increase of felony disenfranchisement laws after the Civil war has led many to conclude that the laws were implemented in several Southern States as part of a strategy to bar blacks from voting. Especially as the policy was expanded in conjunction with the Black Codes which established severe penalties for petty crimes and especially targeted black Americans.[10]

As of 2018 most US states have policies that restore voting rights upon completion of a sentence. Only 3 states, Iowa, Kentucky, and Virginia permanently disenfranchise a felony convict and 6 other states limit restoration based on crimes of "moral turpitude".[11]

The Supreme Court of the United States, by its ruling in the 1974 case of Richardson v. Ramirez,[12] has interpreted the Fourteenth Amendment section 2 as permitting the states to disenfranchise convicted criminals. It is up to the states to decide which crimes could be grounds for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do. Felons who have completed their sentences are allowed to vote in most U.S. states. Between 1996 and 2008 twenty-eight states changed their laws on felon voting rights, mostly to restore rights or to simplify the process of restoration.[13] Since 2008 state laws have continued to shift, both curtailing and restoring voter rights, sometimes over short periods of time within the same state.[13]

Current practices

As of 2008 over 5.3 million people in the United States were denied the right to vote due to felony disenfranchisement.[14] In the national elections in 2012, the various state felony disenfranchisement laws together blocked an estimated 5.85 million felons from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general. The state with the highest number of disenfranchised voters was Florida, with 1.5 million disenfranchised.[5]

2016 Estimates of Disenfranchised Individuals with Felony Convictions[15]
StateIn PrisonOn ParoleOn Felony ProbationIn JailIn Post-sentenceTotalVoting Age PopulationPercentages
 Alabama30,5856,58015,6261,578231,896286,2663,755,4837.62%
 Alaska5,4972,0356,9007-14,439552,1662.61%
 Arizona44,5097,24151,3621,341116,717221,1705,205,2154.25%
 Arkansas19,22421,81124,695975-66,7052,272,9042.93%
 California136,30286,254---222,55730,023,9020.74%
 Colorado21,2078,673-1,066-30,9464,199,5090.74%
 Connecticut14,9262,419---17,3452,826,8270.61%
 Delaware6,8587164,074-4,06715,716741,5482.12%
 Florida102,5554,20886,8864,8221,487,8471,686,31816,166,14310.43%
 Georgia50,90023,545170,1944,112-248,7517,710,6883.23%
 Hawaii6,364----6,3641,120,7700.57%
 Idaho7,8735,0579,863314-23,2061,222,0931.89%
 Illinois47,537--2,089-49,6259,901,3220.50%
 Iowa9,1276,13312,36541023,97652,0122,395,1032.17%
 Indiana28,028--1,630-29,6585,040,2240.59%
 Kansas9,4664,0233,426679-17,5942,192,0840.80%
 Kentucky22,96816,72927,3232,039242,987312,0463,413,4259.14%
 Louisiana35,61431,45037,7613,211-108,0353,555,9113.04%
 Maine------1,072,9480.00%
 Maryland20,378--1,087,21,4654,658,1750.46%
 Massachusetts10,254--921-11,1765,407,3350.21%
 Michigan42,661--1,560-44,2217,715,2720.57%
 Minnesota11,3698,14843,215608-63,3404,205,2071.51%
 Mississippi13,7528,05128,4631,422166,494218,1812,265,4859.63%
 Missouri32,76816,80838,8701,219-89,6654,692,1961.91%
 Montana3,816--330-4,146806,5290.51%
 North Carolina37,44610,97740,867,1,888-91,1797,752,2341.18%
 North Dakota2,042--136-2,178583,0010.37%
 Nebraska6,3777822,9523847,06917,5641,425,8531.23%
 Nevada11,5606,8288,09770162,08089,2672,221,6814.02%
 New Hampshire2,856--175-3,0311,066,6100.28%
 New Jersey19,96414,83158,1231,396-94,3156,959,1921.36%
 New Mexico7,2052,83813,352891-24,2861,588,2011.53%
 New York50,51344,590-2,477-97,58115,584,9740.63%
 Ohio51,102--1,736-52,8378,984,9460.59%
 Oklahoma27,8572,57226,4751,398-58,3022,950,0171.98%
 Oregon14,228--519-14,7483,166,1210.47%
 Pennsylvania49,269--3,705-52,97410,112,2290.52%
 Rhode Island3,355----3,355845,2540.40%
 South Carolina20,1414,62121,4641,011-47,2383,804,5581.24%
 South Dakota3,4642,6434,114170-10,392647,1451.61%
 Tennessee29,27113,18652,6542,763323,354421,2245,102,6888.26%
 Texas161,658111,632216,0336,605-495,92820,257,3432.45%
 Utah6,925--744-7,6692,083,4230.37%
 Vermont------506,1190.00%
 Virginia38,6941,60456,9082,905408,570508,6806,512,5717.81%
 Washington18,3953,81125,1641,182-48,5525,558,5090.87%
 West Virginia7,0423,1874,109389-14,7271,464,5321.01%
 Wisconsin22,85119,53722,1011,118-65,6064,476,7111.47%
 Wyoming2,5366073,14814117,41423,847447,2125.33%
Total1,329,288504,1271,116,58563,8553,092,4716,106,327247,219,5882.47%

Reform efforts

Challenges to felony disenfranchisement laws began in the 1950s as part of the effort of advocating for a shift from retribution to rehabilitation in the American penal system.[16] After the latter part of the 1950s, the ratio of states disenfranchising those convicted of crimes decreased; in the twentieth century, some categories of felons were disenfranchised while others were not and several state laws were revised to provide a broader criminal coverage.[17] Disenfranchisement laws have been amended, since 1997, by 23 states. These reforms take three forms: repeal of lifetime disenfranchisement laws; expansion of voting rights; and simplification of the process of restoring voting rights post-incarceration.[18]

In 2002, Representative Maxine Waters (D, CA) introduced H.R.2830, the Voting Restoration Act, to congress.[19]

Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Primary candidate Rick Santorum from Pennsylvania argued for the restoration of voting rights for convicted felons who had completed sentences and parole/probation.[20] Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for felons while incarcerated.[20][21] Former President Barack Obama supports voting rights for ex-offenders.[22]

From 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for persons who had fulfilled their punishments for felonies. As a result, in 2008, more than a half-million people had the right to vote who would have been disenfranchised under prior restrictions.[23] Since then, more severe disenfranchisement rules have been passed in several states.

During the 2020 Democratic presidential primary, candidate Bernie Sanders argued that all felons should be allowed to vote from prison.[24] His home state of Vermont is one of only two states (with Maine) that do not disenfranchise felons while in prison.

Felony disenfranchisement reforms between 1997 and 2018 have resulted in 1.4 million Americans regaining voting rights.[25]

Florida
Main article: Felon disenfranchisement in Florida

In 2007, Florida's Republican Governor Charlie Crist pushed to make it easier for most convicted felons to regain their voting rights reasonably quickly after serving their sentences and probation terms.[26] In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms. Felons were not able to apply to the court for restoration of voting rights until seven years after completion of sentence, probation and parole.[27] On November 6, 2018, Florida voters approved Amendment 4, an amendment to the state constitution to automatically restore voting rights to convicted felons who have served their sentences.[28] Lifetime bans still apply for those convicted of either murder or sexual offenses.[28] On February 19, 2020, a three-judge panel of the 11th circuit federal appeals court ruled that it was unconstitutional to force Florida felons to first pay off their financial obligations before registering to vote, holding against Florida Republican lawmakers who imposed the requirement in 2019. The ruling by three judges from the U.S. Court of Appeals for the 11th Circuit applies only to the 17 ex-felon plaintiffs who sued Florida, claiming they were too poor to pay back all fines, fees and/or restitution to victims before voting. Despite ruling's narrowness, it was a clear victory for supporters of Amendment 4 which restored the right to vote to nearly all felons who completed "all terms of sentence," the meaning of which has been hotly contested. "This ruling recognizes the gravity of elected officials trying to circumvent Amendment 4 to create roadblocks to voting based on wealth,” said Julie Ebenstein, an American Civil Liberties Union (ACLU) attorney who represented some of those plaintiffs.[29]

Nevada

In Nevada in 2019, the legislature introduced AB 431 which was passed and signed into law, taking effect on July 1, 2019 which restored the right to vote for felons who were no longer serving a prison sentence in the state of Nevada.[30]

Iowa

In Iowa in July 2005, Democratic Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who had completed supervision.[23] On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. But, on his inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed Vilsack's executive order, disenfranchising thousands of people.[31] As of January 2020, Iowa is the only state that imposed a lifetime voting bans for felons, regardless of the crime committed.[32] In June 2020, amidst the George Floyd protests, Iowa governor Kim Reynolds announced that she would sign an executive order restoring voting rights to felons who have completed their sentences, reversing Branstad's 2011 order; this executive order would take effect prior the 2020 November elections.[33]

Virginia
Main article: Felony disenfranchisement in Virginia

The Virginia legislature in 2017 debated relaxation of the state's policy that restoration of voting rights requires an individual act by the governor.[34]

Kentucky

In December 2019, Kentucky's newly elected Democratic governor, Andy Beshear, signed an executive order to restore voting rights and the right to hold public office to more than 140,000 residents who have completed sentences for nonviolent felonies.[32][35][32]

Other states

Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, every state prohibits felons from voting while in prison.[23]

Constitutionality

Unlike most laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez (1974), the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States in which adult male citizens are denied the right to vote for any reason other than "participation in rebellion, or other crime" will suffer a reduction in the basis of their representation in Congress. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another.

But, critics of the practice argue that Section 2 of the 14th Amendment allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case involved two individuals who faced disenfranchisement for presenting invalid checks, which the state authorities had found to be morally turpid behavior.) A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.

Classifications

Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:

Maine[36] and Vermont[37] are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballot and via in-person voting after completion of sentence.

Ends after release

In 16 states and the District of Columbia, disenfranchisement ends after incarceration is complete: Colorado,[38] District of Columbia,[39] Hawaii,[40] Illinois,[41] Indiana,[42] Maryland,[43] Massachusetts,[44] Michigan,[45] Montana,[46] Nevada,[30] New Hampshire,[47] New Jersey (effective March 17, 2020),[48] North Dakota,[49] Ohio,[50] Oregon,[51] Pennsylvania,[52] Rhode Island,[53] and Utah.[54]

In February 2016 the Maryland General Assembly restored the right to vote for more than 40,000 released felons, overriding a veto by Governor Larry Hogan. Maryland's Senate approved the bill on a 29–18 vote, while the state House of Delegates voted 85–56 in favor of it on January 20. Convicted felons under parole or probation had their right to vote restored. The law went into effect in late March, one month before the state's April 26 primaries.[43]

New Jersey Governor Phil Murphy has also signed a new law restoring voting rights to anyone under parole or probation starting in March 17, 2020, just in time for the June 2020 election.[48]

Ends after parole

In three states, disenfranchisement ends after incarceration and parole (if any) is complete: California,[55] Connecticut,[56] and New York.[57]

Ends after probation

Seventeen states require not only that incarceration/parole if any be complete but also that any probation sentence (which is often an alternative to incarceration) be complete: Alaska,[58] Arkansas,[59] Georgia,[60] Idaho,[61] Kansas,[62] Louisiana,[63] Minnesota,[64] Missouri,[65] New Mexico,[66] North Carolina,[67] Oklahoma,[68] South Carolina,[69] South Dakota,[70] Texas,[71] Washington,[72] West Virginia (the prosecutor can request the court to revoke voting rights if financial obligations are unmet), and Wisconsin.[73]

Circumstantial

Eight states have laws that relate disenfranchisement to the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.

  • Alabama – A person convicted of a felony loses the ability to vote if the felony involves moral turpitude. Prior to 2017, the state Attorney General and courts have decided this for individual crimes; however, in 2017, moral turpitude was defined by House Bill 282 of 2017, signed into law by Kay Ivey on May 24, to constitute 47 specific offenses.[74] If a convicted person loses the ability to vote based on having committed a defined act of moral turpitude, he can petition to have it restored by a pardon or by a certificate of eligibility; if the loss of elective franchise was based on a crime not under moral turpitude, eligibility to vote is automatically restored once all sentence conditions have been satisfied.[75][76][77][78] Prior to 2017, a person convicted of a number of crimes having to do with sexual assault or abuse, including sodomy, was ineligible to receive a certificate of eligibility; today, only impeachment and treason remain ineligible for a certificate of eligibility.[79]
  • Arizona – Rights are restored to first-time felony offenders. Others must petition.[80][81]
  • Delaware – The following crimes require a pardon: murder or manslaughter (except vehicular homicide), an offense against public administration involving bribery or improper influence or abuse of office anywhere in the US, or a felony sexual offense (anywhere in the USA). All other convicted felons regain the right to vote after completion of the full sentence.[82][83]
  • Florida – A convicted person permanently loses suffrage if their crime was murder or any sexual offense.[28][32] In January 2019, the lifetime voting ban was lifted for those convicted of lesser crimes upon completion of sentence, including prison, parole, and probation.[32]
  • Mississippi – A convicted person loses suffrage for numerous crimes identified in the state constitution, Section 241 (see note). The list is given below. Suffrage can be restored to an individual by a two-thirds vote of both houses of the legislature. The crimes that disqualify a person from voting are given in Section 241 of the state constitution as: murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.[84]
  • Nebraska – A convicted person permanently loses suffrage if they are convicted of treason; voting rights for all other offenders are restored two years after completion of incarceration, parole, or probation.[85]
  • Tennessee – A person who is convicted of certain felonies may not regain voting rights except through pardon. These include: murder, rape, treason, and voting fraud. For a person convicted of a lesser felony, disenfranchisement ends after terms of incarceration, completion of parole, and completion of probation. In addition, the person must pay "Any court order restitution paid; current in the payment of any child support obligations; and/or Any court ordered court costs paid". The ex-offender must either obtain a court order restoring their right to vote or complete the certificate of restoration of voting rights.[86]
  • Wyoming – Since July 1, 2017, non-violent felons have had their suffrage restored upon completion of their sentence including parole and probation. Non-violent felons who completed their sentence before January 1, 2010 or those convicted out of state must submit a written request to the department of corrections who will determine if their sentence was completed before restoring their voting rights.[87][88]

Individual petitions required

Three states require individual petition to the court for restoration of voting after all offenses.

  • Iowa[89][90]
  • Kentucky – Although, in December 2019, Kentucky's Democratic governor signed an executive order restoring the vote and the right to hold public office to more than 140,000 residents who have completed sentences for nonviolent felonies, the governor stated his order did not extend to those who committed violent felonies because some offenses, such as rape and murder, were too heinous to forgive. This executive order excludes those convicted under federal law or the laws of other states, although such individuals would be able to apply individually for restoration of their rights.[32]
  • Virginia – Only the governor can reinstate civil rights. In 2016, Governor Terry McAuliffe restored rights to "individuals who have been convicted of a felony and are no longer incarcerated or under active supervision ... In addition to confirming completion of incarceration and supervised release, the Secretary of the Commonwealth of Virginia considers factors such as active warrants, pre-trial hold, and other concerns that may be flagged by law enforcement. ... The Governor will review SOC's analysis of each individual's record and will make the final decision on proposed candidates for restoration of rights."[91]

Racial disparities

Felony disenfranchisement policies in the United States impact people of color disproportionally . Compared to the rest of the voting age population, African Americans are four times more likely to lose their voting rights.[92] More than 7.4 percent of African American adults are banned from voting due to felony convictions. Meanwhile, 1.8 percent of those who are not African American are banned from voting.[15]

Economic factors

While some states automatically restore voting rights after incarceration, about thirty states condition the restoration of voting rights to the individual’s ability to pay legal debts.[93] Those who are unable to pay these debts are automatically disenfranchised.

See also

References
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Further reading
  • Bowers M, Preuhs R. Collateral Consequences of a Collateral Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation of Nonfelons. Social Science Quarterly (Blackwell Publishing Limited) [serial online]. September 2009;90(3):722–743.
  • Goldman, D. S. (2004). The Modern-Day Literacy Test?: Felon Disenfranchisement and Race Discrimination. Stanford Law Review, (2), 611.
  • Hinchcliff, A. M. (2011). The "Other" Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement. Yale Law Journal, 121(1), 194–236.
  • Manza, J., Brooks, C., & Uggen, C. (2004). Public Attitudes toward Felon Disenfranchisement in the United States. The Public Opinion Quarterly, (2), 275.
  • Miles, T. J. (2004). Felon Disenfranchisement and Voter Turnout. The Journal of Legal Studies, (1), 85.
  • Miller, B., & Spillane, J. (n.d). Civil death: An examination of ex-felon disenfranchisement and reintegration. Punishment & Society-International Journal of Penology, 14(4), 402–428.
  • Siegel, J. A. (2011). Felon Disenfranchisement and the Fight for Universal Suffrage. Social Work, 56(1), 89–91.
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