Incarcerating Progress:

Felony Disenfranchisement and its Disproportionate Effects on African Americans

By Christopher Adams

 
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Throughout the history of the United States, certain groups have struggled and fought for the quintessential element of political citizenship- the right to vote. Triumphs are marked by the passages of the 14th, 15th, and 19th amendments to the constitution, granting voting rights to all citizens of the country. However, as people watched voting rights expand to the whole population, a quiet force worked behind the scenes contracting the electorate and slowly reversing the trend of expanding citizenship....

Felony disenfranchisement, denying voting rights to those convicted of felonies, became a widespread practice over the course of the 20th century. While these felony disenfranchisement laws originated as racist policies reacting to the group threat of African Americans, they remain to have a disproportionate negative effect on the voting strength of minorities. Furthermore, they catalyzed the election of government officials who did not serve as adequate representatives of the African American population.

While there are other countries that engage in practices of denying voting rights to people actively serving prison sentences, the United States uniquely denies voting rights to nonincarcerated felons. (Uggen &Manza, 778) These are people who have been released from their sentences, and are now on parole. In direct contrast with the United States, many European countries, including Ireland, Spain, Sweden, Denmark, Greece, Australia and South Africa, allow their inmates to retain their voting rights even when they are in prison. (Uggen & Manza, 778) Also, among postindustrial democracies, the Untied States is essentially the only country that allows permanent disenfranchisement for ex-felons in some jurisdictions, and is the only nation to limit or deny rights of individuals convicted of crimes that are unrelated to treason or election-related offenses. (Uggen & Manz, 778) These comparisons expose the draconian and archaic nature of the United States’ felony disenfranchisement policy.

Furthermore, exacerbating the effects of these policies, the United States also exceeds countries for the rate at which it issues felony convictions. In 2000, the incarceration rate in the United States was 686 per 100,000 population, much higher than rates of 105 in Canada, 95 in Germany, and 45 in Japan. Similar higher proportions are found in ratios of nonincarcerated felons as well. (Uggen & Manz, 778) Generally, most states adopted some form of restricting felons’ voting rights, and by 2000, 48 of 50 states bar felons from voting. While in most cases this includes those on parole, 10 of those states also bar ex-felons from voting, and two states permanently disenfranchise recidivists, and one state requires a post-release waiting period. (Uggen & Manz, 782)

With these harsh laws, combined with blacks as a large percentage of the total prison population and only a small percentage of the overall population, the potential for disproportionate effects is evident. The unfortunate prevalence of African Americans in jail combined with other factors unique to African Americans creates a volatile mixture devastating to African American citizenship.

 

Origins

During the reconstruction period in the United States, the possible enfranchisement of newly freed African Americans posed a significant threat to the balance of power between blacks and whites in the Untied States. The threat of this power shift incited an adverse response among whites, as demonstrated repeatedly by an increase in lynching and racial violence. (Behrens, Uggen, and Manza, 560)

Similarly, an increase in felony disenfranchisement provisions can be tied to this backlash. While the 14th Amendment passed in 1868 granted citizenship to African Americans and punished states if they denied males the right to vote, states exploited the clause that voting rights could be denied based on “participation in rebellion, or other crime.” This provided a legal avenue for African American voting disenfranchisement, and served as a predecessor for the soon to come poll taxes, literacy tests, “grandfather” clauses, discriminatory registration requirements, and white-only primaries as clever tactics to strip African Americans of their newly granted freedoms. (Behrens, Uggen, and Manza, 563)

According to scholars Behrens, Uggen, and Manza, the “predominant interpretation has been that white Democrats form “black belt” regions with large African-American populations led the fight for systematic disenfranchisement in the face of regional political threat.” (Behrens, Uggen, and Manza, 566) The “group threat” of African Americans is clearly tied to felon disenfranchisement. “Racial threats in the political realm are potentially devastating to existing power relations because the extension of suffrage formally equalizes individual members of dominant and subordinate racial groups with respect to the ballot.” (Behrens, Uggen, and Manza, 572) Fears such as this trigger negative responses, and can explain the disproportionate effects of criminal disenfranchisement provisions. (Behrens, Uggen, and Manza, 574)

Statistical evidence supports the notion that felony disenfranchisement provisions originated as a tactic to suppress the black vote. Since felony disenfranchisement laws only affected those convicted of crime, the racial composition of prison populations should be explored to understand the racialized origins of the laws. According to research, each 1% increase in the percentage of prisoners who are nonwhite increases the odds that a state will pass its first disenfranchisement law by 10%. (Behrens, Uggen, and Manza, 586)

A similar correlation is found between the passage of the state’s first ex-felon disenfranchisement laws. These are laws prohibiting former felons, rather than incarcerated felons from voting. In one model done by the researchers, a 10% increase in a state’s nonwhite prison population raises the odds of passing an ex-felon disenfranchisement law by nearly 50%. Researchers Behrens, Uggen, and Manza, confident with their results, state their finding “can be summarized concisely and forcefully: the racial composition of state prisons is firmly associated with the adoption of state felon disenfranchisement laws.” (Behrens, Uggen, and Manza, 596)

Furthermore, other measures of racial threat such as state population composition became much more closely correlated with passage of felon voting restrictions after the passage of the Fifteenth Amendment. After the passage of the Fifteenth amendment states could no longer deny voting rights based on “race, color, or previous condition of servitude,” and thus the political threat of African Americans greatly increased. (Behrens, Uggen, and Manza, 597) These statistical findings corroborate the theory that felony disenfranchisement laws emerged in response to the political threat of African Americans.

In many other instances, the racialized motivation behind the disenfranchisement provisions was blatant and far more explicit. For example, in order to encourage the adoption of felony disenfranchisement laws in the South Carolina legislature, the Democratic leadership in the state made it known that “the potential colored voting population of the state was about forty thousand more than white.” During the states’ convention in 1895, lawmakers proceeded to expand their disenfranchisement provisions to include ex-felons. Similarly, in Alabama’s 1901 Constitutional Convention, the state expanded their disenfranchisement laws to include all crimes of “moral turpitude,” which applied to misdemeanors as well as acts not punishable by law. In the opening address, convention president John B. Knox vindicated the use of “manipulation of the ballot” to avoid “the menace of negro domination.” John Field, the man responsible for introducing the law, clearly had hopes that it would reduce the threat of African-American suffrage, as he estimated to his peers “the crime of wife-beating alone would disqualify sixty percent of the Negroes.” (Behrens, Uggen, and Manza, 572)

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Disproportionate Effects

While it could be argued that our criminal justice system treats everyone fairly and the disparate effects on African Americans are not the result of discrimination, there is evidence that refutes this claim. The disenfranchisement laws with racist origins exacerbate historical discrimination and biases in the legal system that are unfair towards African Americans. To understand why criminal disenfranchisement so strongly affects African Americans, “it is necessary to examine the underlying factors that may account for such disproportionately large numbers.” (Harvey, 1155) Disparate targeting of African Americans is an important unjust element of our legal system. The 1990 Uniform Crime Report for the United States issued by the Federal Bureau of Investigations states approximately 29% of the total people arrested were black. Of the people arrested of voting age, and therefore potentially affected by disenfranchisement provisions, there was a slightly higher 29.4%. The disproportionate nature of this data could potentially be explained by the disparate targeting of blacks in the criminal justice system. (Harvey, 1145)

Perhaps the quintessential example of disparate targeting of African Americans is the “war on drugs.” In 1990, 33% of all felons were convicted of drug related crimes. Within that group, blacks accounted for 56%. Demonstrating the disparate targeting, blacks represent 41% of all drug arrests but only account for only 15% of the total drug using population. (Harvey, 1156) Some proponents of the “war on drugs” will attempt to explain the discrepancy in percentages by the fact that dealers, rather than users, are the targets of the war on drugs. However, in contrast to this claim, FBI statistics show that two-thirds of arrests on drug charges in 1991 were for possession rather than sales. During the 1990’s Philadelphia’s “drug czar” John Wilder bluntly admitted, “a black runs a much higher risk of getting stopped and frisked for drugs… than a white does in a white community.” (Harvey, 1145)

Unfortunately, many people still believe that targeting minorities is the easiest way to make drug arrests in response to political pressure. Scholar Alice E. Harvey explains that, “disruptive drug raids are more easily accomplished in inner-city neighborhoods where residents have relatively little political or economic power. Comparatively, drug sweeps are less likely to be attempted in white suburban communities.” (Harvey, 1157) Essentially, the war on drugs exploits the unfortunate socioeconomic conditions of African Americans. Similarly, “reverse sting” operations, where authorities sell drugs rather than try to buy them, are another manifestation of disparate targeting. In Minneapolis, for example, one of these operations netted forty-eight African Americans relative to 5 whites. (Harvey, 1157)

Disparate treatment of blacks in the legal system is also responsible for the devastating effect that felony disenfranchisement has on African Americans. This disparate treatment occurs after they have already been disparately targeted, compounding the consequences. A survey in 1994 shows that 89% of blacks and 43% of whites believe that blacks do not receive equal treatment in the criminal justice system, and there is evidence to corroborate their suspicions. A study by the RAND Corporation showed that 44% of black convicted felons were sent to prison, while only 33% of white convicted felons were sent to prison. An earlier study by the same organization also found that “Blacks and Hispanics are sentenced to prison more often and serve longer terms than whites convicted of similar crimes.” Further evidence is that in 1991, an investigation of 700,000 criminal cases showed that whites are more successful than minorities “at virtually every stage of pretrial negotiation.” The research reveals that of the 71,000 adults with no prior felony arrests, one third of the whites had the charges reduced, while only one fourth of blacks had charges reduced. (Harvey, 1145) It also showed that in Florida, in cases involving crimes that were not felonies, blacks accused of killing whites were found to be “twice as likely as whites accused of killing whites to have their cases upgraded to felony homicides.”(Harvey, 1145) Similarly, another study found that federal sentences for drug trafficking and firearms offenses were 49% higher for blacks compared to whites in 1990, compared to being 28% higher in 1984. (Harvey, 1145) This demonstrates that disparate treatment actually increased in some instances.

Some citizens and lawmakers attempt to attribute the disproportionate number of blacks behind bars and the resulting disenfranchisement simply to individual choices of African Americans. However, this ignores the aforementioned evidence that can impute the higher incarceration rates of blacks to disparate targeting of African Americans and disparate treatment in the legal system. The culmination of the effects is devastating on the political citizenship of African Americans - “After such discrimination removes more blacks from society than whites, disenfranchisement serves to remove them from the ranks of black voters, the numbers of which are already comparatively lower than whites.” (Harvey, 1159)

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Effects on Social Citizenship

Felony disenfranchisement laws also have negative affects on the social citizenship of African Americans. “In terms of rehabilitation, the removal of voting rights negatively impacts any attempt by ex-offenders to enhance self-esteem, which is essential to the reformative process, by implying that they are unfit to cast their ballots.” (Harvey, 1171) Felony disenfranchisement also alienates felons from society, as they are not allowed to partake in the most important part of living in a democratic society. This prevents them from becoming involved in the community as well, and using the right to vote to voice their concerns. As a result of these negative effects, critics of felony disenfranchisement have suggested that it can lead to re-offending. (Harvey, 1171)

Anthony Papa, a former felon, wrote to the New York Times in 2002 to describe the negative affects of criminal disenfranchisement. He describes that he was a first-time nonviolent offender, but he served 12 years under the Rockefeller drug laws of New York State. He asserts “the right to vote is an important part of the rehabilitation process and should be given to those who have paid their debt to society.” When he was released on parole, he could still not vote. He describes this as a “great blow to my self-esteem.” Furthermore, he states that his “neighborhood was deteriorating, and there were many community issues I wanted to voice my opinion on through the vote. But I couldn’t.” (Papa A:16)

Perhaps the most interesting element of his editorial is that when he could vote after waiting five years, he states he “was finally accepted by society in my capacity as a citizen.” (Papa A:16) This supports the argument that “rehabilitation’s goal of fostering community acceptance of the ex-offender is undermined by disenfranchisement…” (Harvey, 1171) Furthermore, the “social stigmatization that disenfranchisement imposes upon ex-felons, by implying that they are unfit to exercise the franchise, is compounded by society’s negative perceptions of black individuals.” (Harvey, 1174) This is an area where felony disenfranchisement affects blacks differently than whites. Essentially, “The negative effects of felon disenfranchisement are felt two-fold by black ex-offenders who may already experience alienation and isolation in a racist society.” (Harvey, 1175) By asserting that they are incapable of asserting their rights of political citizenship, felony disenfranchisement reinforces racist notions and creates another barrier of acceptance in to the community. Disenfranchisement also encourages society to attribute the actions committed by felons solely to the individual, rather than taking in to consideration environmental conditions that may have led to the crime. One authority states, “Disenfranchisement is a prop in [the] act of communal self-delusion.

By rationalizing and facilitating a tendency to localize the blame for crime in the individual, disenfranchisement helps to obscure the complexity of the roots of crime and their entanglement with contingent social structures.” (Harvey, 1173) Rep. John Graham Altman (R- Charleston) exemplified this attitude of ignoring environmental factors as he advocated for harsher felony disenfranchisement laws in South Carolina in 2001. He stated, “If it’s blacks losing the right to vote, then they have to quit committing crimes. We are not punishing the criminal. We are punishing conduct… You need to tell people to stop committing crimes and not feel sorry for those who do…” (SOURCE) Factors such as poverty, racism, violence, and a lack of sufficient educational opportunities all affect the individual propensity to commit a crime. Unfortunately, the people experiencing these conditions are overwhelmingly African American.

Criminal disenfranchisement also serves to reinforce a sense of African-American cultural inferiority. Cultural inferiority, demonstrated by negative stereotyping, a tendency to blame African-Americans for racial gaps in socioeconomic standing (rather than the environment), and a resistance to policy efforts such as affirmative action to fight racist social institutions. As criminal disenfranchisement institutionalizes racial disparities in criminal punishment, it “both reflects and reinforces tacit stereotypes about young African-American men that are intensified through media coverage.” (Behrens, Uggen, and Manz, 569)

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Effects on Political Citizenship

While there is not specific data available to the researchers on how the felons would actually vote, the felon population is matched to the rest of the voting-age population to determine their voting preferences. Models of political behavior include gender, race, age, income, labor force status, marital status, and education. (Uggen & Manz, 784) On average, it was determined that 35 percent of disenfranchised felons would have turned out to vote in presidential elections, and that 24 percent would have participated in senate elections during non-presidential years. While these rates are well below those of the normal population, they still demonstrate that a significant number of disenfranchised felons would have participated in the political process if given the opportunity. (Uggen & Manz, 786) The “hypothetical felon voters showed strong Democratic preferences in both presidential and senatorial elections.” (Uggen & Manz, 786) In more recent presidential elections, Democratic candidates would have obtained 70 percent of the felon vote. A similar percentage is also suggested for most recent senate election years.

“By removing those with democratic preferences form the pool of eligible voters, felon disenfranchisement has provided a small but clear advantage to Republican candidates in every presidential and senatorial election from 1972 to 2000.” (Uggen & Manz, 787) Felony disenfranchisement, using this data, likely had drastic impacts on election outcomes. For example, in the 1978 Virginia election, the researchers estimate that 15,434 of the state’s 93,564 disenfranchised felons would have voted. It is also estimated that 80.2 percent would have gone to the democratic candidate. This would have resulted in a net total of 9,268 Democratic votes lost as a result of disenfranchisement, which is almost double the actual Republican margin of victory of 4,721 votes. (Uggen & Manz, 787) However, this Republican victory as a result of felon disenfranchisement is not an isolated incident. The data applied to the 2000 presidential election, perhaps one of the contested in the history of the country, yields interesting results. In 2000, the outcome of the election hinged particularly on the swing state of Florida. According to the research of Uggen and Manz, “if disenfranchised felons in Florida had been permitted to vote, Democrat Gore would certainly have carried the state, and the election.” (Uggen & Manz, 792) Coincidentally, Florida holds the record for the most disenfranchised felons, with approximately 827,000 criminals stripped of their voting rights. If they had been permitted to participate in the election, and voted at the estimated rate of 27.2 and with a Democratic preference of 68.9 percent, Gore would have carried the state by more than 80,000 votes, and therefore won the presidential election. (Uggen & Manz, 792) To further demonstrate the impact of these voting restrictions, if the estimated voting rate is reduced by half, Gore’s margin of victory is still more than 40,000 votes. Furthermore, if only ex-felons are considered, and their estimated turnout rate is cut in half, Gore’s Margin of victory would have exceeded 30,000 votes.

While African Americans were prohibited from asserting their political rights through criminal disenfranchisement, the law also served to disproportionately suppress the voices of those who shared the same views aligned with the Democratic party. This continued to have an effect on African Americans. For example, the predicted democratic senate majority throughout the 1990’s could have “enabled the Clinton administration to gain approval for a much higher proportion of its federal judicial nominees, and key Senate committees would have shifted form Republican to Democratic control.” (Uggen & Manz, 794) The resulting Republican government from felony disenfranchisement, arguably, attenuated the government’s propensity to enact legislation favorable to African Americans.

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Conclusion

In February of 2002, a U.S. Senate measure to restore suffrage to all ex-felons in federal elections failed to pass. In opposition to the bill, Republican Senator Mitch McConnell of Kentucky stated, “those who break our laws should not dilute the vote of law-abiding citizens.” This is the same senator who, shown above, likely benefited from disenfranchisement provisions throughout his entire career. As the Senate failed to pass this measure, they irresponsibly ignored the racist origins of these laws in America and their devastating effects on African American citizenship. Or, perhaps an even larger injustice to their constituents and the legislative process, they were ignorant of these facts. Instead, as many African Americans sit in jail, felony disenfranchisement similarly incarcerates the progress of African American citizenship.

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Sources

Behrens, Angela, Christopher Uggen, Jeff Manza. "Ballot Manipulation and the "Menace of Negro Domination": Racial Threat and Felon Disenfranchisement in the United States, 1850-2002." American Journal of Sociology 109(2003): 559- 605

Harvey, Alice E.. "Ex-Felon Disenfranchisement and its Influence on the Black Vote: The Need for a Second Look." University of Pennsylvania Law Review 142(1994): 1145-1189.

Papa, Anthony. “Yearning to Vote.” New York Times 19 Oct. 2002: A16

Uggen, Christopher, Jeff Manza. "Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States." American Sociological Association 67(2002): 777-803.

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