Liberal and republican arguments against the disenfranchisement of felons

Criminal Justice Ethics

Volumn 24, Issue 1, 2005, Pages 3-18

  Reiman, Jeffrey ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 33947240990     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2005.9992176     Document Type: Article

References (102)

1. The Sentencing Project, Felony Disenfranchisement Laws in the United States, available online at http://www.sentencingproject.org/pdfs/1046.pdf (updated September 2004).
2. See also Kevin Krajick, Why Can't Ex-Felons Vote? The Washington Post, August 18, 2004, A19. Bear in mind that a felony is simply a crime subject to a penalty of a year or more in prison.
3. See George Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, UCLA Law Review 46 (1999): 1899.
4. Alec Ewald offers liberal and republican legal argume republican philosophical arguments. For example, Ewald's liberal argument focuses on the need for strict scrutiny by courts on restrictions on fundamental rights such as the right to vote, whereas mine focuses on why the right to vote is so fundamental. Nonetheless, as is normally the case in legal and philosophical arguments, there are areas of overlap. For example, I follow him in urging, as part of my republican argument, that allowing felons to vote will serve a rehabilitative function. In such cases of overlap, I keep my argument brief and refer to Ewald; in other places, I critique his views. That notwithstanding, I am much indebted to Ewald's treatment of the issue and agree with many of his conclusions.
5. See Alec C. Ewald, 'Civil Death': The Ideological Paradox of Criminal Disenfranchisement Law in the United States, Wisconsin Law Review (2002): 1045-1137.
6. Ryan S. King and Marc Mauer, The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia (The Sentencing Project publication, September 2004): 2, available online at: http://www.sentencingproject.org/pdfs/atlanta-report.pdf).
7. See also The Sentencing Project, Felony Disenfranchisement Laws in the United States. 4 Ewald, 'Civil Death', 1045.
8. If those who are locked up in jails, juvenile or military facilities, as well as those currently being held by U.S. Immigration and Customs Enforcement, are also counted, there are today over 2 million people behind bars in the United States, a number equivalent to the total population of states such as Kentucky or Oklahoma.
9. See Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn & Bacon, 2004), 12;
10. see also Bureau of Justice Statistics, Prisoners in 2001 (July2002; NCJ195189), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p01.pdf.
11. Patrick A. Langan and Helen A. Graziadei, Felony Sentences in State Courts, 1992, Bureau of Justice Statistics Bulletin (January 1995, NCJ-151167), 7; available at http://www.ojp.usdoj/bjs/pub/pdf/felsent.pdf.
12. Prison admissions of drug offenders increased tenfold between 1980 and 1993 Games P. Lynch and William J. Sabol, Did Getting Tough on Crime Pay? [Urban Institute Crime Policy Report, August 1997], 5). From 1988 to 1992, convictions for drug trafficking increased 53 percent.
13. See Langan and Graziadei, Felony Sentences in State Courts, 1992, 7. 8 Between 1979 and 1991, the proportion of state prisoners incarcerated for violent crimes decreased from about 58 percent to about 47 percent (Lynch and Sabol, Did Getting Tough on Crime Pay?, 4). It is worth noting that, though crime rates have declined over the last ten years, only a fraction-about a quarter-of the decline can be attributed to the recent imprisonment binge. William Spelman has calculated that the crime drop would have been 27 percent smaller if the prison build-up had never taken place (Spelman, The Limited Importance of Prison Expansion, in The Crime Drop in America, ed. A. Blumstein and J. Wallman [New York: Cambridge University Press, 2000], 123). Getting even this fraction has been very costly. For example, a study by the Justice Policy Institute and the Correctional Association of New York found that, since 1988, New York's annual prison budget increased by $761 million while funding for the city and state university systems declined by nearly the same amount.
14. See Reiman, The Rich Get Richer and the Poor Get Prison, 16.
15. Bureau of Justice Statistics, Criminal Offender Statistics, at http://www.ojp.usdoj.gov/bjs/crimoff.htm (revised December 28, 2004).
16. Documented in Reiman, The Rich Get Richer and the Poor Get Prison, 103-56.
17. Documented in Reiman, The Rich Get Richer and the Poor Get Prison, 55-102; see 75-81 for comparisons between ordinary homicide and fatal occupational disease.
18. The Sentencing Project, Felony Disenfranchisement Laws in the United States.
19. Jason Schall, The Consistency of Felon Disenfranchisement with Citizenship Theory, The Sentencing Project Publication, available online at http://www.senrencingproject.org/pdfs/jschall-harvard.pdf, p. 19 and notes.
20. King and Mauer, The Vanishing Black Electorate, 15; a study of disenfranchisement in Rhode Island contends that felon disenfranchisement does not only punish the felon, but the entire neighborhood.It's not only felons who suffer a loss of political voice, but their neighbors as well; and further, Felon disenfranchisement dramatically reduces the political power of cities and neighborhoods (Marshall Clement and Nina Keough, Political Punishment: The Consequences of Felon Disenfranchisement for Rhode Island Communities [Rhode Island Family Life Center, Special Report on the Impact of Incarceration and Reentry, September 22, 2004], 5, 8; available online at http://www.rifamilylifecenter.org/index.php?name=politicalpunishment).
21. See Schall, Consistency of Felon Disenfranchisement, 21-22.
22. Christopher Uggen and Jeff Manza, Democratic Contradiction? The Political Consequences of Felon Disenfranchisement Laws in the United States, American Sociological Review 67 (2002): 780-81+783-92.
23. Schall, Consistency of Felon Disenfranchisement, 6.
24. See Ewald, 'Civil Death', 1064-65.
25. U. S. Constitution, amend. 14, sec. 2 (emphasis added).
26. Marc Mauer, Disenfranchising Felons: The Modern-Day Voting Rights Challenge, Civil Rights Journal 6 (1) (Winter 2002): 40-4, available online at http://www.usccr.gov/pubs/crj/wint2002/wint02.pdf;
27. Schall, Consistency of Felon Disenfranchisement, 10.
28. Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896);
29. see Ewald, 'Civil Death', 1090-95, for other explicit statements of legislators' intent to exclude blacks from voting by means of disenfranchisement laws.
30. Schall, Consistency of Felon Disenfranchisement, 10.
31. Washington v. State, 75 Ala. 583, 585 (1884).
32. The Supreme Court has repeatedly declared the right to vote to be fundamental and applied strict scrutiny to legislation restricting suffrage (Ewald, 'Civil Death', 1067n86, citing recent cases in support).
33. The ruling Supreme Court decision on this issue is Richardson v. Ramirez, 418 U.S. 24, 56 (1974). In the majority opinion, Justice Rehnquist held that section 2 of the Amendment (which, as we noted, explicitly exempts disenfranchisement of criminals as a reason for reducing representation) affirmatively permits such disenfranchisement. Thus, section 1 of the Amendment (the Equal Protection clause) cannot be held to prohibit it. Justice Thurgood Marshall dissented vigorously.
34. See Richardson v. Ramirez, 418 U.S. at 56 (Rehnquist, J.) and 75-76 (Marshall, J., dissenting).
35. Green v. Board of Elections of the City of New York, 380 F.2d 445, 451 (2d Cir. 1967), quoting John Locke, Second Treatise of Government, section 89. Judge Friendly is not alone in appealing to the social contract; other court decisions refer to it as well. For example, in Shepherd v. Trevino, a 1978 case, the Fifth Circuit Court held that the state had a legitimate interest in denying the vote to individuals who, by violating the law, have breached the social contract and, like insane persons, have raised questions about their ability to vote responsibly (Shepherd v. Trevino, 527 F.2d 1110, 1115 [5th Cir. 1978]).
36. Christopher P. Manfredi, Judicial Review and Criminal Disenfranchisement in the United States and Canada, The Review of Politics 60 (2) (1998): 277-305. Ewald comments that Manfredi's essay is important because so few contemporary scholars have developed careful theoretical arguments for criminal disenfranchisement (Ewald, 'Civil Death', 1081nl48).
37. Manfredi, Judicial Review and Criminal Disenfranchisement, 295.
38. Manfredi, Judicial Review and Criminal Disenfranchisement, 300.
39. Roger Clegg, Who Should Vote? Texas Review of Law & Politics 6 (2001-2002), 174.
40. In nineteenth century America, many states and territories did grant the vote to aliens. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, University of Pennsylvania Law Review 141 (1993), 1397-417. Today, countries in the European Union have begun to allow residents from other EU countries to vote in local elections in the countries in which they work and reside.
41. 42 U.S.C. section 1973a (1994). Note that Manfredi would probably not agree that such a statute conflicts with his claim that disenfranchisement can be justified because criminalslack moral virtue. He thinks that there is an important difference between making citizens prove that they are virtuous (which the statute forbids) and his proposal to disenfranchise citizens who, by committing crimes, have shown that they are not virtuous. I agree that there is a difference, but I doubt that it has the weight that Manfredi attributes to it. The spirit if not the letter of the statute runs against using moral evaluations as bases for voting rights, and I think that this runs against the republican case for disenfranchising felons.
42. Manfredi, Judicial Review and Criminal Disenfranchisement, 297.
43. David Matza, Delinquency and Drift (New York: Wiley, 1964), 26 (emphasis in original).
44. Manfredi, Judicial Review and Criminal Disenfranchisement, 300. For reasons like this, though Manfredi makes his case for disenfranchising both felons and ex-felons, he is clearly less comfortable with the latter.
45. See, for example, 297, where Manfredi distinguishes temporary from permanent disenfranchisement and finds the former more fully consistent with liberal premises than the latter.
46. Matza, Delinquency and Drift, 22. In 2001, 21 year-olds were the age group with the highest rate of arrests for violent crimes, people 35 to 39 were arrested for violent crimes at a rate less than half that of 21 year-olds; and those 50 to 54 were arrested at approximately one-eighth the rate for 21 yearolds (Office of Juvenile Justice and Delinquency Prevention, OJJDP Statistical Briefing Book [May 31, 2003], available online at http://ojjdp.ncjrs.org/ojstatbb/html/qa276.html).
47. Lynch and Sabol, Did Getting Tough on Crime Pay?, 8. Bear in mind that, since drug offenses are victimless, arrest and prosecution are normally not instigated by a citizen complainant. Consequently, the number of drug arrests there are, and thus the number of felony drug convictions, is largely a matter of the discretion of law enforcement agencies (see King and Mauer, The Vanishing Black Electorate, 8).
48. Cited in The Challenge of Crime in a Free Society: A Report of the President's Commission on Law Enforcement and the Administration of Justice (Washington, D.C.: U.S. Government Printing Office, 1967), 43.
49. Barbara H. Zaitzow and Matthew B. Robinson, Criminologists as Criminals, in Readings in Deviant Behavior, ed. Alex Thio and Thomas C. Calhoun (New York: Allyn & Bacon, 2001), 231-33.
50. Isaiah Berlin, The Crooked Timber of Humanity: Chapters in the History of Ideas (NY: Alfred A. Knopf, 1991). Berlin took as the epigraph of this book, Kant's statement Out of timber so crooked as that from which man is made nothing entirely straight can be built, from Kant's 1784 essay Idea for a Universal History with a Cosmopolitan Intent, Sixth Thesis.
51. Thus my thesis is not incompatible, for example, with Wilson and Herrnstein's claim that the criminal population shows a higher incidence of deficient attachments to others and to social norms (on the Minnesota Multiphasic Personality Inventory) and of impulsiveness (on other tests) than the larger population. James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985), 189, 204-05. Note that Wilson and Herrnstein also recognize that crime declines dramatically with age and explain it in part by the fact that, due to purely developmental changes in how people view right and wrong, the typical person passing into adulthood shifts from the egocentric and hedonistic focus of childhood to more abstract and principled guidelines to action (147). This suggests that the differences that show up between criminal and noncriminal populations in the MMPI and other measures are not permanent.
52. Thomas L. Pangle, Should Felons Vote? A Paradigmatic Debate Over the Meaning of Civic Responsibility (unpublished manuscript, furnished by the author), 8, 12.
53. Fletcher, Disenfranchisement as Punishment, 1906-07;
54. King and Mauer, The Vanishing Black Electorate, 16.
55. Ewald, 'Civil Death', 1110 (quoting experts on republicanism, Michael Sandel, J.G.A. Pocock, and Gordon Wood).
56. Ewald, 'Civil Death', 1058.
57. Quoted in Clegg, Who Should Vote? 172.
58. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, Stanford Public Law and Legal Theory Working Paper Series, available online at http://papers.ssrn.com/abstract=484543, 21-26.
59. General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, CCPR/C/21/Rev.l/Add.7, August 27, 1996, Annex V (1);
60. cited in Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Human Rights Watch and The Sentencing Project, 1998), chap. 8, U.S. Criminal Disenfranchisement under International Human Rights Law, available online at http://www.hrw.org/reports98/vote/usvot98o-06.htm.
61. Ewald argues along the same lines as Karlan, writing that It is not logically clear why the loss of voting rights is a proportional penalty for a first-time drug offender.as well as a murderer. while the sanction is rarely imposed at all on those who violate the social contract and endanger the public by driving intoxicated (Ewald, 'Civil Death', 1103). However, this is more about lack of proportionality in the entire sentencing structure than about disenfranchisement. If sentences were proportionate to crimes generally, then disenfranchising felons until their sentences were served would be equally proportionate.
62. In making my argument about the implications of social contract doctrine for disenfranchisement of felons, I rely primarily on the version of the doctrine that John Locke presents in his Second Treatise of Government, though I indicate in the text or the notes how other versions of the contract-Rousseau's, Kant's, Rawls's-likewise support my contentions. I focus on Locke partly because his is the version hat has been used to defend disenfranchisement, and partlybecause I think his is a fitting model for American citizenship ights. To be sure, as Rogers Smith documents in detail in his mportant book Civic Ideals, the Lockean idea was not the nly idea to influence American political culture, but it has lways been an important one.
63. Rogers Smith, Civic Ideals New Haven, CT: Yale University Press, 1997). Smith writes hat, after years of subscribing to Louis Hartz's thesis (that merican thought has always been dominated by a liberal deology resembling [that of] John Locke), detailed study of aws and judicial decisions about the rights of citizens in ineteenth century America convinced him that although any liberal.elements were visible, much of the history of merica's citizenship laws did not fit with liberalism as Hartz escribed it. Those laws and decisions expressed beliefs hat America was by rights a white nation, a Protestant nation, nation in which true Americans were native-born men with nglo-Saxon ancestors (Smith, Civic Ideals, 1-3). But, Smith lso speaks of the massive influence on educated Americans f Locke's Essay Concerning Human Understanding and writings n religious tolerance and education.[W]orks [that] onveyed political themes consonant with his Two Treatises of overnment, wherein Locke's social contract doctrine is resented. Smith also points out that Locke's ideas were idely present in influential sermons of the revolutionary ra. Smith, Civic Ideals, 524-25n24.
64. Jerome Huyler, ocke in America: The Moral Philosophy of the Founding Era Lawrence, KS: University Press of Kansas, 1995).
65. The only rationale for disenfranchisement that makes ense is that felons, by virtue of their crime and their conviction, orfeit their right to participate in the political process Fletcher, Disenfranchisement as Punishment, 1899).
66. Jonathan D. Casper, American Criminal Justice: The efendant's Perspective (Englewood Cliffs, N.J.: Prentice Hall 972), 146-51.
67. Matza, Delinquency and Drift, 48-50.
68. Cited in Ewald, 'Civil Death', 1101.
69. Locke, Second Treatise of Government (first edition, London: ondon: Awnsham Churchill, 1690), sec. 11; quoted in Ewald, 'Civil Death,' 1073.
70. The whole sentence from which the quoted passage comes s: And thus it is that every man in the state of Nature has a ower to kill a murderer, both to deter others from doing the ike injury (which no reparation can compensate) by the xample of punishment that attends it from everybody, and lso to secure men from the attempts of a criminal who, aving renounced reason, the common ride and measure God hath iven to mankind, hath, by the unjust violence and slaughter he ath committed upon one, declared war against all mankind, and herefore may be destroyed as a lion or a tiger, one of those wild avage beasts with whom men can have no society nor security Locke, Second Treatise of Government, sec. 11 [I have mphasized the part quoted by Ewald]).
71. Locke, Second Treatise of Government, sec. 12. Interestingly, here is a strikingly similar sequence of statements in ousseau's Social Contract. Rousseau writes, every malefactor, y attacking social rights, becomes on forfeit a rebel and a raitor to his country; by violating its laws he ceases to be a ember of it; he even makes war upon it. In such a case the reservation of the State is inconsistent with his own, and one r the other must perish; in putting the citizen to death, we lay not so much the citizen as the enemy (Jean-Jacques ousseau, The Social Contract, bk. 2, chap. 5, in The Social ontract and Discourses, trans. G. D. H. Cole [London: Dent & ons, 1973], 190). But, eight sentences after the quoted assage, Rousseau writes, The State has no right to put to eath, even for the sake of making an example, anyone hom it can leave alive without danger.
72. Locke, Second Treatise of Government, sec. 19.
73. Locke, Second Treatise of Government, sec. 19.
74. Elsewhere, Locke writes that Those who are united in ne body, and have a common established law and judicature o appeal to, with authority to decide controversies between hem and punish offenders, are in civil society one with nother; but those who have no such common appeal, I mean n earth, are still in the state of Nature (sec. 87). So Locke upposes controversies and offenses to take place within civil ociety-within the polity-as long as there is a common law nd judge to appeal to. Since felony disenfranchisement pplies to people who were caught and convicted of a felony, hey clearly committed their acts subject to a common law nd judge, and thus did not return to the state of nature.
75. Locke, Second Treatise of Government, section 20.
76. Locke, Second Treatise of Government, section 23.
77. Things are different outside of a polity, when people ake war, say, in the form of an attacking army. Since states re in the state of nature with respect to one another, political uthority is not merely temporarily ineffective, it is ermanently absent. Then, the losing soldiers (if and only if heir cause was unjust) forfeit all their rights: And thus aptives, taken in a just and lawful war, and such only, are ubject to a despotical power, which.is the state of war ontinued (Locke, Second Treatise of Government, sec. 172).
78. John Rawls asserts that the duty to comply [with laws ade by the majority] is problematic for permanent minorities hat have suffered injustice for many years (Rawls, Theory of ustice [Cambridge, MA: Harvard University Press, 1971], 55).
79. Michael Walzer, The Obligations of Oppressed inorities, Obligations: Essays of Disobedience, War and itizenship (New York: Simon and Schuster, 1970), 46-70;
80. Bill Lawson, Crime, Minorities, and the Social Contract, riminal Justice Ethics, 9 (2) (Summer/Fall, 1990): 14-24.
81. Locke, Second Treatise of Government, sec. 212 (my mphasis).
82. Since for Locke neither birth nor tacit consent gives full itizenship, the only way to apply Locke to the American ituation is by treating voting as the functional equivalent of consent and appointment.
83. Locke, Second Treatise of overnment, sec. 118-22.
84. Locke, Second Treatise of Government, sec. 214+26.
85. Locke, Second Treatise of Government, sec. 24.
86. In the late nineteenth century, courts held that a prisoner as effectively a slave of the State (Rufftn v. Commonwealth 2 Va. [21 Gratt.] [1871], 796); today, however, a prisoner retains all the rights of an ordinary citizen except those xpressly, or by necessary implication, taken from him by aw (Coffin v. Reichard, 143 F.2d [1948], 445).
87. Rawls writes that citizens by their vote exercise coercivepower over one another (John Rawls, Political Liberalism New York: Columbia University Press, 1993], 217;
88. Rawls, Reply to Habermas, Journal of Philosophy 92, (3)[March 1995]: 146). From this it follows that citizens without he vote are coerced non-reciprocally by citizens with the ote and thus, for Rawls as well, the nonvoters are in subjection o the voters.
89. CF. Jesse Furman, Note, Political Illiberalism: he Paradox of Disenfranchisement and the Ambivalences of awlsian Justice, Yale Law Journal 106 (1996-97): 1197-231.
90. Furman attempts to show that Rawls's contractarian theory f justice as fairness supports disenfranchisement of felons, ut his argument is unpersuasive. Based on the fact that awls allows that justice may be enforced, Furman claims hat Rawls's liberal theory has a repressive and thus illiberal imension (Furman seems to think that a consistent liberal ust tolerate everything). To make justice as fairness truly iberal, Furman proposes that it be altered-based on the urkheimian view that crime is normal in society-to give p the idea that crime should be eliminated altogether, and o accept instead that crime be maintained at an acceptably ow level (Furman, 1229). Not mentioned is the fact that urkheim's view is based on a very special-and not very iberal-sociological theory of the social function of crime. hy repressing any crime meets Furman's liberal standard is lso not said. Nor does Furman point to any text of Rawls's here he says that crime should be eliminated altogether. hat Furman does cite is Rawls calling for containing crime Furman, 1210, 1226), which is compatible with Furman's roposal. Most disappointing of all, however, is that Furman akes his case untroubled by the fact that he can cite nothing n Rawls that is explicitly sympathetic to disenfranchisement f felons.
91. John Silber, Inmates Shouldn't Vote, Boston Herald, Aober 24, 2000, 33.
92. Rousseau, The Social Contract, bk. 1, chap. 6,174.
93. Whereas contractors in Locke's theory retain in the polity ll the rights and freedom they had in the state of nature inus what must be given up to form a polity, Rousseau's ontractors give up all their natural rights and freedom to the tate and receive back freedom in the form of an equal share n governance of the commonwealth. To my mind, it is ecause they are Rousseauians, that the French think they ave the right to tell young Muslim girls that they cannot ear headscarfs in public schools, an idea that would scarcely ccur to Lockean Americans.
94. Kant, too, recognized this logic. He wrote, The legislative uthority can belong only to the united will of the people. For ince all right is to proceed from it, it cannot do anyone wrong y its law. Now when someone makes arrangements about nother, it is always possible for him to do the other wrong; ut he can never do wrong in what he decides upon with egard to himself (for volenti non fit injuria [no wrong is done o one who consents]). Therefore only the concurring and nited will of all, insofar as each decides the same thing for all nd all for each, and so only the united will of the people, can e legislative; and further, one cannot say: the human eing in a state has sacrificed a part of his innate outer freedom or the sake of an end, but rather, he has relinquished entirely is wild, lawless freedom in order to find his freedom as such ndiminished, in a dependence upon laws, that is, in a rightful ondition, since this dependence arises from his own will Immanuel Kant, The Metaphysics of Morals [Cambridge, UK: ambridge University Press, 1996], 91, 93).
95. Kant, On the Proverb: That May Be True in Theory But Is of No ractical Use, in Perpetual Peace and Other Essays (Indianapolis, N: Hackett Publishing Co., 1983), 75-76, where essentially he same thought is expressed. Note that, as with Locke, Kant oes not take this thought to imply a right of all citizens to ote. So, as with Locke, I apply Kant's thought to voting ecause voting is how the people manifest their will in modern emocracies.
96. In this context, it is interesting to note that Amendment hirteen to the U.S. Constitution, the amendment that bolished slavery, allows only one condition under which involuntary servitude is permissible, namely, as a punishment or crime whereof the party shall have been duly onvicted.
97. Without the vote, [ex-convicts] return to society still risoners to some degree (Silber, Inmates Shouldn't Vote, 3).
98. Locke, Second Treatise of Government, sec. 8.
99. Fellner and Mauer, Losing the Vote, chap. 6, Disenfranchisement n Other Countries, available online at http://hrw.org/reports98/vote/usvot98o-04.htm#P112_2733.
100. Silber, Inmates Shouldnt Vote, 33.
101. Ewald, 'Civil Death', 1112-16.
102. Iris Marion Young, Inclusion and Democracy (New York: xford University Press, 2000), 118.