On Tuesday, November 8, when Americans go to the polls to cast their ballot for the next President of the United States, an estimated 6.1 million citizens will be barred from participating due to felony convictions.
This disenfranchised population includes persons currently in prison or jail as well as millions who are under probation or parole or who have completed their sentence. In fact, an estimated 3.1 million people are disenfranchised due to state laws that restrict voting rights even after completion of sentences. African American communities have disproportionately been impacted by these felony disenfranchisement policies—a recent report from The Sentencing Project estimates that one in every thirteen black Americans has lost their voting rights.
State laws governing voter eligibility for prisoners and ex-felons vary greatly. Only two states allow prisoners to vote—Maine and Vermont—whereas the twelve most extreme states impose a lifetime voting ban on convicted felons even after they have completed their sentence and are no longer on probation or parole. Fifteen other states restrict voting for prisoners, four states for prisoners and those on parole, and eighteen states for prisoners, those on parole, and those on probation. (See here for a state-by-state breakdown).
The right of an American citizen to vote in elections is protected by the United States Constitution, which prohibits disenfranchisement for reasons such as age, gender, and race. However, the Fourteenth Amendment to the Constitution preserves for the states the full power to restrict an individual’s right to vote due to a criminal conviction. The National Conference of State Legislatures provides the following brief history:
The idea of taking away a criminal’s right to vote has been around since ancient Greece and Rome. A condition called “civil death” in Europe involved the forfeiture of property, the loss of the right to appear in court, and a prohibition on entering into contracts, as well as the loss of voting rights. Civil death was brought to America by English colonists, but most aspects of it were eventually abolished, leaving only felon disenfranchisement intact in some parts of modern America.
I propose that prisoners and ex-felons should retain the right to vote and that to disempower and disenfranchise such a large portion of the population is philosophically unjustified and harmful to society. The notion of civic death is grounded in an antiquated retributivist justification for punishment and is misguided and counterproductive. It should be abolished along with its other components.
Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong; this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished.
A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle (1), and it is increasingly given deference in the “purposes” section of state criminal codes (2), where it can be the guiding principle in the interpretation and application of the code’s provisions (3). Indeed, the American Law Institute recently revised the Model Penal Code (the first since the Code’s promulgation in 1962) so as to set desert as the official dominate principle for sentencing (4). And courts have identified desert as the guiding principle in a variety of contexts (5), as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty” (6).
But rather than defend that model here, I will simply make my case directly for restoring voting rights to prisoners and ex-felons.
First, I propose that only restrictions to personal liberty that have a demonstrated and substantial link to protecting public safety should be permitted. The right of self-protection and protection of harm to others, for example, can justify incapacitating dangerous criminals but it cannot justify restricting or removing voting rights. Preventing prisoners and ex-felons from voting does not fall within the public safety exception of liberty.
The U.S. criminal justice system would make great strides if it adopted something like the Norwegian Correctional Service’s normality principle, which maintains that during the serving of a sentence, life inside prison should resemble life outside as much as possible. According to the normality principle: “No-one shall serve their sentence under stricter circumstances than necessary for the security in the community. Therefore offenders shall be placed in the lowest possible security regime.” Furthermore, it states that prison should be a restriction of liberty but nothing more, that is, “no other rights have been removed by the sentencing court.” As a result, all Norwegian prisoners retain their right to vote.
Second, disempowering and disenfranchising prisoners and ex-felons has the effect of dehumanizing and marginalizing them, sometimes permanently. Philosophically arbitrary and perpetual punishment, including the denial of voting rights to people who have paid their debt, imposes second-class citizenship on millions of citizens. This disempowerment runs contrary to the notion of second-chances—the idea that an individual can redeem himself and correct his/her course in life. If one thinks that prisons should aim at rehabilitation, then retaining the right to vote is essential. As The Guardian put it back in 2012, “A prisoner’s rehabilitation as a safe, responsible, and productive member of society must include the most basic right of democratic process—the right to choose who governs us. To remove this right dehumanizes prisoners.”
Third, as a recent article in Politico Magazine argues:
[O]ur constitutional ideals support the right of prisoners to vote, and denying it violates the concept of self-government that the founders cherished. Granting this right also makes sense for the country in terms of politics and policy. As prisons have grappled with the explosion in their populations in the past 20 years, allegations of prisoner maltreatment multiply, and criminal justice reform moves to the fore of our political debate, we should consider that one of the best ways to solve these intractable and expensive problems would be to listen to those currently incarcerated—and to allow them to represent themselves in our national political conversation.
By cutting felons out of the political conversation, we are losing out on the potential insights they could provide. Public policy would greatly benefit by listening to those most affected by the social determinates of crime and those most familiar with the workings of the criminal justice system. Disempowering prisoners and ex-felons results in a class of citizens still subject to the laws of the United States but without a voice in the way they are governed—not unlike taxation without representation.
Finally, as the Politico article also notes, felony disenfranchisement laws create a cast system eerily similar of the days of slavery and Jim Crow:
The vast majority of states prisoners cannot vote, yet they’re often counted in the population for the legislative district of their prison, the main factor that determines a state’s number of representatives and its presidential electoral votes. It’s a practice the NAACP calls “prison-based gerrymandering.” If that sounds familiar, it should: Such a policy resembles the Constitution’s notorious three-fifths clause, which denied slaves the right to vote but counted them in the Census for the purposes of amassing more pro-slavery representatives.
This is an extremely troubling practice with sad political implications. Just like the days of the three-fifths clause, modern day prison-based gerrymandering means politicians lack an incentive to reduce the number of prisons in their district since they benefit politically from them—and they benefit without having to listen to the needs and concerns of those imprisoned.
The forgoing considerations are by no means exhaustive. Additional arguments for restoring the right to vote to prisoners and ex-felons can, no doubt, be given. Considerations of human dignity, for example, recommend that no one should be humiliated, dehumanized, or marginalized without just cause. To the extent that felony disenfranchisement violates respect for human dignity, it too provides an additional reason to oppose it.
Gregg D. Caruso is Associate Professor of Philosophy at SUNY Corning and Co-Director of the Justice Without Retribution Network (JWRN) housed at the University of Aberdeen School of Law, Scotland. He is the recipient of numerous awards and fellowships including the SUNY Chancellors Award for Excellence in Scholarship (2015) and the Regional Board of Trustees Excellence in Teaching Award (2012). He is also the Founder and Editor-in-Chief of Science, Religion and Culture and a regular contributor to Psychology Today. Gregg can be reached at firstname.lastname@example.org.
(1) E.g., 204 Pa. Code Sect. 303.11 (2005); See M. Tonry, “U.S. Sentencing Systems Framgenting,” in M. Tonry (ed.) Panel Reform in Overcrowded Times (Oxford 2004): 21-28, Table 1.1.
(2) E.g., Cal. Penal Code Sect. 1170(a)(1) (West 1985): “The legislature finds and declares that the purpose of imprisonment for crime is punishment.”
(3) E.g., Model Penal Code Sect. 1.02(2) (Official Draft 1962).
(4) American Law Institute, Model Penal Code Sect. 1.02(2) adopted May 16, 2007.
(5) See, for example, the U.S. cases Spaziano v. Florida, 468 U.S. 447, 462 (1984); Gregg v. Georgia, 428 U.S. 153, 183-84 (1976); M. Cotton, “Back with a vengeance: The Resilience of retribution as an articulated purpose of criminal punishment” (2000) 37 American Criminal Law Review 1313, 1326-27, 1357.
(6) Spaziano v. Florida, 468 U.S. at 461.
Reprinted from PsychologyToday.com with permission from the author, Nov 06, 2016
Comments from Social Media
Bob Russel (CIPA 08)Hi There; Has happened within Ontario Corrections for a number of years now. FYI with thanks,
Lisa Rea A quick comment on this idea. I would support ex-felons having their voting rights restored. However, would not support those who are currently incarcerated having the right to vote. I do not speak for Restorative Justice International in this view.
Lew White Millions are denied the right to vote because they are felons. At one time, women and those who did not own property were not allowed to vote.
Richard SampsonI agree. Prisoners or returning citizens should have the right to retain the right to vote
Frederick Cobb I don’t see it ever happening here – Scotland maybe but not here.
Robert Green Good, they forfeited that right when they were convicted of a felony Still managed to have 3 million non-U.S. citizens vote in the last election. That should be a bigger concern than these ex cons
Pamela Yates Prisoners and ex-offenders can vote in Canada. It is a basic human right that is not removed upon conviction. The sentence (incarceration, probation, fine, etc.) is the punishment for the crime and additional rights cannot legally be removed as additional punishment.
Patsy Ortega I have a question for the group. If an individual makes a mistake and goes to prison, does his time, learns his lesson and becomes a law abiding citizen, never making a mistake again, should they be punished the rest of their lives? I believe they should earn these privileges back, don’t you? Or should they carry that sentence with them the rest of their lives? These individuals made a mistake, paid their debt and rose above, shouldn’t they be given a second chance? There are ways that will show just what these individuals have done to change and better their lives, like maintaining a job for a period of time, purchased a home and maybe started their own business, and became self sufficient and successful, should this not count? I would like to hear your perspective on this. Thank you.
Christopher Kent Hi Patsy. Although your question is quite valid, it doesn’t take into account recidivism. In many states, this can be quite high. My question is what about those who just can’t seem to stay out of the system? (Let’s be honest, some – albeit not all – really want to stay in because it’s easier for them. Should we then put on conditions if voting is allowed? Or should we allow repeat offenders the same rights as all others? (In my humble opinion, if we dig really deep, this is not an easy answer.)
Claire Bannerman-Mott Hi Christopher and all, what would an objective argument/reason be to keep people from voting ? I am particularly interested in why behavior not associated to the right to vote should define this? People who are incarcerated or under supervision are populations who are deeply impacted by politics, so why should they not have a say in government? Being tough on crime does equate to being smart on crime and this is something researchers have been finding globally in studies for decades. A politician who works based on the emotive idea of being tough on crime has a very different impact on the criminal justice system to those who work with evidence based solutions.
Whitney Anderson In some cases ex-cons have their voting rights restored after they complete parole. If you are legally living in the community your voice should Also consider recidivism is tied to a variety of factors, one of which is loose or no bond with the community they re-enter…developing ties to the community, and feeling like a valued member, or at least being given a voice, creates the possibility of instilling a sense of worth in the disenfranchised…
Paul Conway Regardless of whether you are a locked up or not. If you are a citizen of that country you should have the right to vote. Stopping people from voting does amount to censorship or politicians scared inmates being treated inhumanely having a say and voting them out of office.
Keith Livingway We should be concentrating on whether or not those so-called ex-cons were guilty in the first place because of the private prison issue in the country. Every Judge has a monetary interest directly or indirectly when people go to jail. The longer they stay the more money judges make in their own little pockets. Same goes for the prosecutors and everyone else involved. So before folks starting turning their high and mighty noses up they might find out they are dead wrong about being so arrogant and stupid. IN 2013, over 1000 prisoners were released from the Georgia prisons because at least three of them were in jail for 10 years without a trial or any charges against them. That is how out of touch people are in this country. Wake the hell up folks, the criminals running the justice system are making fools of all of you.
Gene Farina I agree with Keith Livingway’s comments. There needs to be a distinction, no doubt. I consider an ex con, which by the way is a term rarely used
Whitney Anderson In Texas there are 11 oyster related felonies on the books…No joke.
Jim Markowitz our “rehab” effort is failing… 75% recividism… locking them all up together without treatment … or teaching them work skills…. or wait… maybe we could do those things BEFORE they grow up and do dumb things as adults with no skills to offer.
Keith Livingway People that commit real crimes meaning murder, rape, major theft etc… do not need to be involved in any political process. Political processe
Bradley S. Zachary, M.B.A. Cand Regardless… we better give a damn what happens to these people… once we stop caring we’re all in a lot of trouble. People are just that… people, human beings worthy of respect and dignity. The reasons for incarceration are complex and sad. It’s easy to dismiss them until you are task with reading the heart wrenching conditions from which some of them have come.
Bradley Schwartz It is time to end life long punishment, after you have served your sentence. By giving back the right to vote, the former inmate becomes a returning citizen. He or She becomes part of society. We have posted numerous articles on prisonpath.com re: this issue.
Jim Hennessey Irishman Once they have been “rehabililtated”, they should have the right to vote, no criminal record, and be on an equal footing with the rest of us. We guaranteed recidivism and that is why we have more people in prison than Communist Red-China.
Bryan Bila How do we define “rehabilitated”? Someone who served their time? Someone who has completed Probation or Parole?? Once they are “rehabilitated” and they then they reoffend, do they still get to vote? I could not disagree with this article more. Should criminals be given steps to re enter society after their punishment has been served? Yes, but while their punishment is being served, in custody or on parole, they should lose their right to vote. If they don’t like it, they shouldn’t have committed the crime. There should be a class of crime that ends their voting right. Murder, Rape, Child Molestation etc. Lower level crimes, let the criminal earn that right back by making the proper and successful steps to earn it back. If they offend again. Remove the right permanently. A choice they made when they when they decided to commit a crime again. We are not dehumanizing them. They are doing it on their own by the choices they make.
Steve Dunnington What is the logic behind removing a citizens right to vote? Is that they are restricted because they are “bad” people? If so when do they suddenly become “good” people and are allowed to vote again? Or is it simply explained as part of their punishment? If its the latter its…odd. Love to hear what the logic is for this law.
Patsy Ortega Thank you for all your input! Very interesting perceptions and comment
Claire Bannerman-Mott I am reposting because I realized I had a written mistake and could not edit the post! Hi Christopher and all, what would an objective argument/reason be to keep people from voting ? I am particularly interested in why behavior not associated to the right to vote should define this? People who are incarcerated or under supervision are populations who are deeply impacted by politics, so why should they not have a say in government? Being tough on crime does not equate to being smart on crime and this is something researchers have been finding globally in studies for decades. A politician who works based on the emotive idea of being tough on crime has a very different impact on the criminal justice system to those who work with evidence based solutions.
Lisa Salinas Once a person is released, he (or she) should have his right to vote restored. He did his time. Let him reacclimate and be a full-fledged member of society again.
Matthew Ballantyne Let me get this straight….a bunch of State corrections staff, who collectively work to remove inmate rights through their various unions are jumping up and saying that felons should get an auto-restore to their revoked rights immediately after exiting prison? Are you all serious? If so you need to do the honorable thing and retire, pursue something that doesn’t present the conflict you’re currently living with.
Steve Dunnington Mathew Ballantyne, forgive my ignorance but who are you referring to?
Keith Livingway It appears that once the ex-con has left prison and paid his or her debt to society based on what Matthew is saying, that to not restore voting rights would be a form of double jeopardy. Further, it diminishes the whole corrections process. Are we implying that the prison system does not work as far as rehabilitation is concerned? Are we saying that once a ex-con has re-entered into society that the ex-con is still an ex-con and a criminal which would imply that the present private prison system is allowing criminals back on the street? It would further imply that the present privately owned prison system does not work at all and creates a conflict within ourselves as if we are crazy to believe that once the debt is paid, that there is another hidden debt that has yet to be paid or the individual is still a criminal and the general public lives under an illusion that prison works at all. If it does not work nor fulfill its purpose, then why does it exist?
Steve Dunnington Different conversation I think Keith. It depends on what you can fairly expect from prisons. Its the public kept safe for a time at least? Mostly yes? Is the offenders freedom limited as required for punishment? Yes. So prisons do succeed mostly in what the y are mainly intended for. Rehab in prison cannot ever be seen as the main role of prisons. Prisons will always (IMHO) fail in any comparison to non prison based rehab programmes for many reasons. Rehab is more about the individual offenders attitude and will and societies willingness and ability to help a citizen who has committed a crime. That’s my opinion anyway.
Keith Livingway Just keep in mind, I am not bashing prisons, in most cases I do agree they do extinguish an immediate threat and are very effective when it comes to immediate threats. Now, let me share a paragraph with everyone from an affidavit filed in the Human Rights Tribunal. I do this to be very specific as to where the good guys and bad guys line becomes blurred. Due to character restrictions on linkedin, I will have to post it in another post. I do want to express my appreciation for allowing me to impart these concerns to everyone here.
Keith Livingway The affiant was chained up with inmates who were Compton gang members. They informed the affiant of what is called T.U.N.A. fight. Turn Up Non Affiliated fights where inmates in certain dorms that are not gang members are matched up and forced to fight each other, while gang members bet on the fights. If the non-affiliated choose not to fight then they are beaten by the gang members. This activity is allowed within those facilities known as Wayside and Super Max and even encouraged to manufacture longer sentences which produces more money for these private detention centers. Rehabilitation is never mentioned within the private detention centers. The affiant was placed in dorm 618 for two days where the prison politics were in full effect. The dorms are separated by race, and the gang members ru n the jails. They are respected way more than someone who is non-affiliated. end of quote We can do better than this folks. We can all do better.
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