Felony disenfranchisement

Felony disenfranchisement is the term used to describe the practice of prohibiting persons from voting based on the fact that they have been convicted of a felony. It therefore restricts universal suffrage; [Human Rights Watch and the Sentencing Project, " [http://www.naacpldf.org/content/pdf/felon/sentancingproject.pdf LOSING THE VOTE -The Impact of Felony Disenfranchisement Laws in the United States] " (October 1998).] the legitimacy of this is a matter of some controversy.

History

The roots of felony disenfranchisement laws can be traced back to ancient Greek and Roman traditions. Disenfranchisement was commonly imposed on individuals convicted of "infamous" crimes as part of their "civil death", whereby these persons would lose all rights and claim to property. The practice of disenfranchisement was transplanted to America by English settlers.

Current Application

United States

Today, only two states continue to impose a life-long denial of the right to vote to all citizens with a felony record, absent some extraordinary intervention by the Governor or state legislature. These are Kentucky, and Virginia. In 2007, Florida moved to restore voting rights to convicted felons. In July, 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision. However, the lifetime prohibition on voting remains Iowa law. Nine other states disenfranchise ex-felons for various lengths of time following the completion of their probation or parole. Almost every state prohibits felons from voting while incarcerated, on probation, or on parole.

Upon the passage of the Fifteenth Amendment, giving African-Americans the right to vote, Southern States began to use seemingly neutral voting qualifications - e.g. literacy tests, property requirements, grandfather clauses, tests for good moral character and criminal disenfranchisement - to deny the vote to black people but also undesirable whites. While disenfranchisement laws had existed long before these practices began, a number of Southern States tailored these laws to maximize their impacts on African-Americans.Unlike most other 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", 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 which deny the vote to male citizens, except on the basis of "participation of rebellion, or other crime", will suffer a reduction in representation. 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. However, many critics argue that Section 2 of the 14th Amendment does not represent an endorsement of felon disenfranchisement statutes as constitutional in light of the equal protection clause; but is limited only to the issue of reduced representation. The Court did rule however in "Hunter v. Underwood" 471 U.S. 222, 232 (1985) that a state's felony 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." 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 discriminate and it was enacted with discriminatory animus.

Other countries

Most democracies give ex-offenders the same voting rights as other citizens. In Finland and New Zealand felons are restricted to vote for several years after their release from prison, but only if the offender was convicted of voting fraud or corruption, and it is restored after that. Several European countries, e.g. France and Germany, permit disenfranchisment on some occasion, but only by special court order. In China and Taiwan, people can have their political rights stripped as punishment. In addition to being barred from voting, they cannot work in government departments. In China, having political rights stripped also means that person's right to expression, assembly, association and protest will be suspended.

Many countries even allow their inmates to vote. Examples are Canada, the Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. [Research by Penal Reform International may be obtained from CURE (Citizens United for Rehabilitation of Errants) in Washington, D.C. Also on file at Human Rights Watch.] In Germany the law even calls on prisons to encourage prisoners to vote. Only those convicted of electoral fraud and crimes undermining the "democratic order", such as treason are barred from voting, while in prison. [The American Series of Foreign Penal Code: Federal Republic of Germany, Title I, § 45 (5). A judge may bar a convicted offender from voting only if the offense is punishable by more than one year of imprisonment and if the crime falls within enumerated sections of the Penal Code covering such crimes as treason, electoral fraud, espionage, membership in an illegal organization.]

Arguments

Pro-felony disenfranchisement

Proponents of felony disenfranchisement contend that felonies are, by definition, serious crimes, and that persons who commit felonies have 'broken' the social contract, and have thereby given up their right to participate in a civil society. Proponents may view disenfranchisement as simply being another form of punishment for the crime committed, or a deterrent to future crime. Some argue that felons have shown poor judgment, and that they should therefore not have a voice in the political decision-making process. OthersFact|date=February 2007 go so far as to draw this concept to what is deemed to be its logical ultimate conclusion: that a wealthy person who commits a felony should also be deprived of all of their property, in order to prevent them from participating in the political process financially.

Anti-felony disenfranchisement

Opponents point to empirical evidence that the relatively small proportion of ex-felons who do participate in the political process by voting are less likely to return to crime. They note that felony disenfranchisement is often accompanied by other deprivations of civil rights, such as the ability to work in certain professions, which make it harder for former convicts to lead productive lives. Some also contend that it may be cruel and unusual punishment, in violation of the Eighth Amendment, to sentence someone to a lifelong prohibition from voting based on a single felony conviction. They point to instances of teenagers being convicted of relatively minor crimes which can still be classified as felonies, like trespassing on a construction site or stealing a stop sign, and argue that the law should not operate to deprive them of fundamental rights that they might not appreciate until many years later. Some contend that the right to vote is such a fundamental protection against potential government tyranny that should never be deprived, no matter the circumstances. It has also been argued Fact|date=June 2007 that felony disenfranchisement in some states, especially Florida in the 2000 Presidential election, de-facto amounts to racism [ [http://www.zmag.org/content/showarticle.cfm?ItemID=4695 Racist Felony Disenfranchisement] by Paul Street in ZMag, December 16, 2003] [Greg Palast, "The Best Democracy Money Can Buy"] Research by sociologists Jeff Manza and Chris Uggen shows the impact of disenfranchisement on the outcome of elections. [Jeff Manza & Chris Uggen, Locked Out: Felon Disenfranchisement and American Democracy (Oxford 2006)] Their research also suggests that persons involved in the criminal justice system who vote may have lower rates of recidivism. [Gabriel J. Chin (2007) [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1075642 Felon Disenfranchisement and Democracy in the Late Jim Crow Era, reviewing Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (2006)] , Arizona Legal Studies Discussion Paper No. 31-07).]

Felony conviction thresholds affected by inflation

One aspect of this issue which bears upon the above arguments is the fact that various property crimes can have dollar amount thresholds, which, if exceeded, turn a misdemeanor into a felony. For example, in Massachusetts under penalties specified in MGL Chap. 266: Sec. 127, [ [http://www.mass.gov/legis/laws/mgl/266-127.htm M.G.L. - Chapter 266, Section 127 ] ] a prosecution for "malicious destruction of property" can result in a felony conviction, if the dollar amount of damage exceeds $250. [http://www.bristolda.com/doc.ccml?9,947,419,da419,E,,Doc,page.html] [ [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/8432&invol=1 FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code ] ] Some people would argue that $250 is excessively low and since this dollar amount has not risen for many years, even damaging another's radio or cell phone could result in losing one's right to vote. If the dollar thresholds are not increased by law (or indexed to Inflation), a conviction for what is effectively very little money, could result is losing one's right to vote.

References

See also

* Disfranchisement
* Universal suffrage

External links

* [http://www.sentencingproject.org/issues_03.cfm The Sentencing Project page on Felony Disenfranchisement]
* [http://www.hrw.org/reports98/vote/usvot98o-04.htm DISENFRANCHISEMENT IN OTHER COUNTRIES] , by Human Rights Watch
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=433580&high=%20Gabriel%20CHin Gabriel J. Chin, Reconstruction, Felon Disenfranchisement and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?, 92 Georgetown Law Journal 259 (2004)]
* [http://brennan.3cdn.net/8782cc82daf02b9431_29m6ibzbu.pdf The Brennan Center for Justice at NYU: Restoring the Right to Vote]