The New Invisible Man: Felon Disenfranchisement Laws Harm Communities
Issue #71, December 2004
I am an invisible man. No, I am not a spook like those who haunted Edgar Allan Poe; nor am I one of your Hollywood-movie ectoplasms. I am a man of substance, of flesh and bone, fiber and liquids — I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me.
— Ralph Ellison, The Invisible Man
What makes a United States citizen invisible? What makes a community invisible? The answer: felon disenfranchisement laws. The laws prohibit ex-felons from exercising certain enumerated rights or allow a felony conviction to be used to terminate legally recognized relationships. Felon disenfranchisement laws are post-conviction, state statutory restrictions that are neither uniform nor universal, but vary from state to state. In The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later, Kathleen Olivares et al. surveyed the fifty-one United States jurisdictions, and found that a felony conviction has consequences for the following nine rights or areas of life: the right to vote, parenting, public employment, divorce, serving on a jury, holding public office, firearm ownership, criminal registration, and civil death. While civil death is no longer applied, all of the other consequences of a felony conviction operate in some form or another depending upon the state in which the ex-felon resides. Although ex-felons are denied many different rights, the laws deny that right which has been deemed in both the academic literature and the popular media as quintessential to citizenship — the right to vote.
By temporarily or permanently denying ex-felons the right to vote or demanding that they subscribe to a burdensome and onerous restoration process in order to regain their right to vote, felon disenfranchisement laws relegate ex-felons to second-class citizenship or, more aptly, strip ex-felons of their citizenship thereby reducing them to non-citizens. Felon disenfranchisement laws therefore contravene the Fourteenth and Fifteenth Amendments of the United States Constitution. In addition to the constitutional violations, felon disenfranchisement laws violate criminal law theory because the punishment is excessive and does not fit the crime, and because the consequences of that punishment are not solely restricted to the individual ex-felon but impact the ex-felon's community as well. Simply put, the laws undermine the citizenship of the individual ex-felon, and contribute to the collective disenfranchisement of the communities to which ex-felons belong. Prior to an assessment of the resulting community disenfranchisement, it is necessary first to look at what it means to be a citizen and at how felon disenfranchisement laws impact the individual ex-felon.
What is a Citizen?
Citizenship is legally defined as one who has the "status of a citizen;" and a citizen is "a person who, by either birth or naturalization, is a member of a political community, owing allegiance to the community and being entitled to enjoy all [of] its civil rights and protections." According to Black's Law Dictionary those "civil rights and protections" are:
[T]he individual rights of personal liberty guaranteed by the Bill of Rights and by the 13th, 14th, 15th, and 19th Amendments, as well as legislation such as the Voting Rights Act. Civil rights include especially the right to vote, the right of due process, and the right of equal protection under the law.
Academics conceptualize citizenship as a process of exchange whereby citizens are required to fulfill enumerated obligations to the larger society, and society in return bestows upon its citizens rights and benefits. Underlying this conceptualization of citizenship is the concept of equality. In Beyond Entitlement: The Social Obligations of Citizenship, Mead states that,
Americans seem to feel equal when they possess a bundle of rights and obligations that they view as normal for their society. Equality is not so much an entitlement, a status, as an activity. To be equal an American must do things, not just claim them. From that perspective duties such as obeying the law or paying taxes become, not just burdens, but badges of belonging.
Upon their release from the criminal justice system, ex-felons are expected to perform the obligations of citizenship; however, felon disenfranchisement laws deny them the attendant rights and obligations owed to every citizen who performs such obligations. Ex-felons are therefore not equal, and without such equality they do not share in the "common citizenship" enjoyed by their counterparts who have not been convicted of a felony. Ironically, the very process of serving one's sentence is in effect an obligation of citizenship, and one that should be rewarded with the restoration of rights.
An individual who commits a felony has violated the social compact. Society responds by withholding the rights and obligations accorded to each citizen. During that time the felon is removed from the polity either literally, through physical incarceration or figuratively, through probation or parole. When the felon has served the sentence that has been determined for the crime committed and is granted release from the system, the ex-felon has satisfied the debt owed to society. In fulfilling the obligations set forth by society as a prerequisite for release, the ex-felon has remedied the transgression committed against society. At that time, society should restore the ex-felon to full membership which means with all of the rights and benefits to which a citizen is entitled. The further withholding of such rights and benefits is society's abrogation of the social compact, and a denial of citizenship to the ex-felon. The ex-felon is at best a second-class citizen and at worst a non-citizen. While felon disenfranchisement laws are designed theoretically to apply to the status group of felon without regard to race, gender, and/or geographical residence, the practical effect indicates otherwise.
Felon Status and Race
Generally speaking, a felony is defined as "a serious crime usually punishable by imprisonment for more than one year or by death." For example, a felony includes but is not limited to murder, rape, arson, and burglary. By definition, a felony is determined by the length of time that accompanies a conviction instead of the type or nature of the crime committed. Therefore, felon disenfranchisement laws are theoretically intended to deny certain rights to members of a status group, i.e. persons convicted of a felony, regardless of personal characteristics. Practically, however, the laws do not have that intended effect because of the overrepresentation of men of color, and specifically African-American men, in the criminal justice system.
African-American men, and by extension the communities of which they are members, are disproportionately impacted by felon disenfranchisement laws. In Regaining the Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws, Fellner and Mauer report that not only have approximately 3.9 million Americans lost the right either temporarily or permanently to vote, but the disenfranchised group of ex-felons contains 1.4 million ex-felons that have completed their sentences, and 1.4 million African-American adult males. The result of the laws is that the number of disenfranchised African-American males is seven times the national average. While the published intent of felon disenfranchisement laws is to punish all the members of the ex-felon status group equally, the history of the laws indicates otherwise.
Felon disenfranchisement laws are not unique to the United States. According to Abramovitz, in Felon Disenfranchisement v. Uniform Standards in Federal Elections, ancient western democracies have always used felon disenfranchisement laws to exclude members from their polities. Abramovitz contends that the felon disenfranchisement laws in the United States were used as a method to control voters, and were not based on racial motivations. He writes that "in the wake of Reconstruction and suffrage for adult black males, many states amended their felon disenfranchisement laws with the specific purpose of targeting 'black crimes,' so as to reduce the number of eligible black voters." Others such as Andrew Shapiro disagree with Abramovitz' assessment, and point to a history of African-American disenfranchisement in the United States. Shapiro argues "whether the impact of these statutes on minorities is accidental or partly deliberate, it is important to note that there is a history in this country of intentional use of such laws to deprive blacks of the vote". The foundation of disenfranchisement was laid long before the Reconstruction era and continues to support a structure of African-American disenfranchisement that is more expansive, and impacts not only the individual African-American male ex-felon but also the African-American community as a whole.
Impact on the Individual
For the individual ex-felon, felon disenfranchisement laws deny them the opportunity to exercise the quintessential rights of citizenship, most notably the right to vote. As a result, ex-felons tend to be alienated ex-felons from mainstream society. For many ex-felons, this legalized exclusion is more often than not an extension of that which they may have experienced either because of poverty or because of race discrimination prior to becoming convicted felons, and leads them to commit such crimes again. In an article in the February 3, 2000 edition of USA Today David Cole writes that "we stamp [ex-felons] as outsiders and bar them from the quintessential act of citizenship, only increasing the likelihood that they will return to a life of crime." The refusal to restore the right to vote, as well as the host of other rights prohibited to ex-felons, denies them the opportunity to begin life anew as fully incorporated citizens. While felon disenfranchisement laws bar the exercise of some rights, the laws do not invalidate other profitable obligations associated with citizenship. Ex-felons who manage to become gainfully employed are still required to pay taxes even though they are denied the benefits associated with those duties such as the ability to elect their representatives or to decide on policies that will govern their lives, and lives of their families. Centuries ago this prospect of taxation without representation was untenable to some Americans. Today, however, such a policy is acceptable, as long as the voice that is denied is that of the ex-felons. Consequently, by alienating ex-felons and treating them as non-citizens, felon disenfranchisement laws merely contribute to the difficult process of reintegration for the ex-felon.
The restrictions that felon disenfranchisement laws place upon ex-felons prohibit them from operating in society as their fellow citizens do, thereby pushing them to the margins of society. In many cases, the only options available to those who are locked out by society are illicit activities that will only lead to them being locked up by society again and again. Consider this. An ex-felon has served his full sentence and has been released back into the community. Upon his release, he is informed that he is either not allowed to vote, or that there is an additional waiting period before his right to vote is restored. (Of course, depending upon the jurisdiction in which he lives, there may be several other rights that are summarily denied as well.) His friends and neighbors, who are not ex-felons, are not denied any rights. Faced with such circumstances, the ex-felon decides that the commission of a crime is not a violation of the social compact because society has forsaken him and denied him that which is his birthright. Alex Friedmann, an ex-felon, said it best: "If society doesn't care enough about former prisoners to treat them as citizens, with voting rights of citizens, then why should former prisoners care enough about society to act like law-abiding citizens." By not enfranchising ex-felons upon their release from the criminal justice system, ex-felons are denied the societal acknowledgement that the debt owed has been paid in full, and the ex-felon is once again a member of the larger community.
Felon disenfranchisement laws unequivocally impact the individual ex-felon. The laws remove the very basis of recognition by the polity and the rest of society — citizenship. Andrew Shapiro writes that "disenfranchisement is the harshest civil sanction imposed by a democratic society. When brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box . . . the disinherited must sit idly by while others elect his civic leaders and while others choose the fiscal and governmental policies which will govern him and his family." As the laws undermine the citizenship of African-American male ex-felons, the collective citizenship of the community in which these ex-felons reside is eroded.
Impact on the Community
The release of ex-felons back into their communities without the rights of others makes them a dependent population, or more aptly, an "invisible" population to those outside of these communities. The presence of a group of disenfranchised members in its midst is an additional drain of resources that these communities must bear. The laws impact their residential communities in several ways. First, when ex-felons are denied the right to vote, communities lose voting power. The loss of such power denies the community from having its full voice at the ballot box when trying to mobilize their power and resources to encourage a positive action or prevent an adverse one by politicians. Todd Clear, a criminal justice professor who conducted a study of two poor and mostly black communities in Tallahassee, Florida found that there was "not a single family without at least one disenfranchised man — making it unlikely that the community will be able to band together when ... a state senator proposes locating a toxic waste dump nearby." In addition to a lack of power at the ballot box and, subsequently, representation in government, communities also lack representation in the criminal justice arena.
Apart from the right to vote, the other important right that is denied to ex-felons is the right to serve on a jury. Since the laws disproportionately impact African-American males, the laws undermine another important criminal law principle that one should be tried by a jury of one's peers. Legally, there is no constitutional guarantee that the jury should be representative of the community. However, the pool of potential jurors is diminished before the process even begins. Therefore, there only exists a token representation of members of the African-American community, and with the increase in felony convictions, those numbers too are dwindling.
Felon disenfranchisement laws violate the tenets of criminal law theory, and undermine citizenship for the individual ex-felon and the communities to which ex-felons belong. Shapiro argues that "disenfranchising ex-felons who have served their time and paid their debt to society is indefensible under even the most punitive theories of criminal justice." The laws are neither deterrents nor rehabilitative. They are, however, retributivist, adding additional time to those who have completed their sentences and been released from the auspices of the criminal justice system.
To impose a permanent ban or to require an additional waiting period on the quintessential element of citizenship, the right to vote, is to deny that which is given by birth or achieved by naturalization — citizenship. The right to vote has been jealously guarded since the founding of the United States. It has taken constitutional amendments and legislative acts for all groups to be granted the right to vote, and thereby recognized as full citizenships. Legally, African-Americans have achieved the status of citizen. Practically, African-Americans have to continue to fight obstacles set up to deny their citizenship. Historically, in a number of United States' jurisdictions, African-Americans have had to challenge poll taxes, literacy tests, grandfather clauses, whites-only primaries, and felon disenfranchisement laws, all designed to prohibit them from voting and thus negate their citizenship. All of the other forms of disenfranchisement have fallen by the wayside, save one — felon disenfranchisement laws.
S. David Mitchell earned an MA in Sociology in 1999 and a JD in 2002 from the University of Pennsylvania. He is currently a Scholar in Residence in the Department of Sociology at the University of Colorado at Boulder working on his dissertation on ex-felon disenfranchisement in Colorado and Nevada.