Continuing payment on one's debt to society: The german model of felon disenfranchisement as an alternative

Minnesota Law Review

Volumn 84, Issue 4, 2000, Pages 753-804

  Demleitner, Nora V ^a  

^a ST MARY'S UNIVERSITY   (United States)

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EID: 34548554296     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (269)

1. See The Law on Convicted Felons Running for Office, STAR TRIB., Apr. 6, 1994, at 9E; Bob Minzesheimer, First Primary: More Hopeful for Fewer Votes, USA TODAY, Dec. 26,1991, at 4A.
2. See Bureau of Justice Statistics, Prisoners in 1998 (visited Feb. 7, 2000) . Projections for 1999 and 2000 indicate that by the end of each year, the jail and prison population will have increased by an additional 80,000 inmates, rising to over two million by December 2000. See The Sentencing Project, National Inmate Population of Two Million Projected in 2000 (visited Feb. 9, 2000) . According to the Justice Policy Institute, the two million mark was already reached the week of February 14, 2000. See Jesse Katz, U.S. Prison Population Reaches 2 Million Mark, SAN ANTONIO EXPRESS-NEWS, Feb. 19,2000, at 16A.
3. See BUREAU OF JUSTICE STATISTICS, SURVEY OF CRIMINAL HISTORY INFORMATION SYSTEMS 13 tbl.1 (1993).
4. See JAMIE FELLNER & MARC MAUER, HUMAN RIGHTS WATCH & THE SENTENCING PROJECT, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENTLAWS 7 (1998).
5. During the impeachment of President Clinton, one of the penalties demanded by the House prosecutors was a life-long ban on holding office. See, e.g., lan Brodie, Damning List of Abuses Drawn Up for Impeachment, THE TIMES, Dec. 11, 1998, at 4M; Paul Leavitt, Presenting the Case: How Long, Who Will Testify, USA TODAY, Jan. 11, 1999, at 8A. To many people, that request seemed unprecedented because it went much farther than the sanctions ever contemplated against former President Nixon.
6. See, e.g., Alan Hirsch, Contorting the Constitution, WASH. TIMES, Jan. 1, 1999, at A17. However, public discussion almost never acknowledges that many convicted offenders remain under a lifetime ban to hold state public office.
7. In the name of retribution and incapacitation, state and federal governments have recently passed further legislation that supplements this array of collateral consequences. Among the most notable are offender registration and notification statutes. For a more complete listing of collateral sentencing consequences, see Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL"Y REV. 77 (1999).
8. An exception is the discussion surrounding the racial impact of the denial of voting rights to ex-offenders. See generally FELLNER & MAUER, supra note 4;
9. Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "the Purity of the Ballot Box," 102 HARV, L. REV. 1300 (1989);
10. Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look, 142 U. PA. L. REV. 1145 (1994);
11. Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L. J. 537 (1993).
12. See Patricia Allard & Marc Mauer, The Sentencing Project, Regaining the Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws (visited Feb. 9, 2000) .
13. See FELLNER & MAUER, supra note 4, at 8-11.
14. See id. at 7.
15. See Allard & Mauer, supra note 8.
16. See Michael A. Fletcher, Voting Rights for Felons Win Support, WASH. POST, Feb. 22,1999, at Al.
17. See OLIVER SCHWARZ, DIE STRAFGERICHTLICHE ABERKENNUNG DER AMTSFäHIGKEIT UND DES WAHLRECHTS 20 (1991).
18. SEE EMIL KüHNE, DIE EHRENSTRAFEN 11-12 (1931).
19. See SCHWARZ, supra note 13, at 22, 26.
20. See id. at 23-24.
21. See FRANZ WEITHASE, üBER DEN BüRGERLICHEN TOD ALS STRAFFOLGE 91-93 (1966).
22. See KÜHNE, supra note 14, at 16.
23. See CLAUS ROXIN, I STRAFRECHT: ALLGEMEINER TEIL 87 (3d ed. 1997).
24. See KÜHNE, supra note 14, at 23.
25. See id. No such prerequisite existed for Zuchthaus penalties because any Zuchthaus sentence connoted moral blameworthiness.
26. Cf. ALBERT ESSER, DIE EHRENSTRAFE 7, 89 (1956) (describing how "civil death" in France assumed the impossibility of rehabilitation).
27. See KÜHNE, supra note 14, at 28.
28. See SCHWARZ, supra note 13, at 35.
29. See id. at 36.
30. See ROXIN, supra note 19, at 83, 87.
31. See id. at 87.
32. See §45(5) Strafgesetzbuch [StGB].
33. See Ursula Nelles, Statusfolgen als "Nebenfolgen" einer Straftat (Art. 45 StGB), 1/1991 JURISTENZEITUNG 17,21 (1991).
34. Academic criticism of the provision, however, exists. See generally SCHWARZ, supra note 13; Jürgen Jekewitz, Der Ausschluss vom aktiven und passiven Wahlrecht zum Deutschen Bundestag und zu den Volksvertretungen der Länder auf Grund richterlicher Entscheidung, 1977 GOLTDAMMER'S ARCHIV FÜR STRAFRECHT 161 (1977); Nelles, supra note 29.
35. In 1987, for example, the provision was used only 11 times. See SCHWARZ, supra note 13, at 19.
36. See, e.g., Karl Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 209,243 (Louis Henkin ed., 198l).
37. See HANS-GEORG SCHÄTZLER, HANDBUCH DES GNADENRECHTS 24, 68-69 (2d ed. 1992).
38. See id. at 24.
39. Active voting rights imply the right to vote, passive voting rights the right to be elected. The latter are only covered here to provide a comprehensive picture of section 45 StGB.
40. Under the German Criminal Code, a crime (Verbrechen) is defined as a legally sanctionable act that carries a prison sentence of one year or more. Any legally sanctionable offense that carries a lesser penalty is a Vergehen. See §12 StGB; see also JOHANNES WESSELS, STRAFRECHT ALLGEMEINER TEIL 4 (27th ed. 1997).
41. See §45(1) StGB. For a critique of this provision as incompatible with the more differentiated disenfranchisement provision under section 45(5), see Jekewitz, supra note 30, at 169.
42. See §45(2) StGB.
43. See id.
44. The right to vote is construed broadly and not limited only to local, state and national elections. Rather, it also encompasses other public elections. See SCHWARZ, supra note 13, at 60.
45. See §45(5) StGB. While not mandatory, disenfranchisement should be imposed for full years. See HERBERT TRÖNDLE & THOMAS FISCHER,
46. STRAFGESETZBUCH UND NEBENGESETZE 289 (49th ed. 1999).
47. See §45a StGB. For a critique of this provision, see Jekewitz, supra note 30, at 166. In this respect the denial of the franchise differs from the deprivation of a driver's license which becomes effective on the day of sentencing, with the time of imprisonment counting fully toward the period during which the offender is banned from driving.
48. See TRUNDLE & FISCHER, supra note 41, at 289.
49. The denial of the right to vote as a Nebenstrafe is mentioned in sections 92a (covering §§80-90b StGB), 101 (covering §§93-100a StGB), 102(11) (covering §102 StGB), 109i (covering §§109e-109f StGB), and 108c StGB. Membership in a terroristic organization is not a ground for denial of voting rights. See SCHWARZ, supra note 13, at 50-54.
50. See KARL LACKNER & KRISTIAN KüHL, STRAFGESETZBUCH 283 (22nd ed. 1997).
51. TRUNDLE & FISCHER, supra note 41, at 289.
52. See ADOLF SCHÖNKE & HORST SCHRÖDER, STRAFGESETZBUCHKOMMENTAR (Theodor Lenckner et al. eds., 25th ed. 1997).
53. See §45b StGB (noting the potential future commission of intentional offenses as a factor in reinstating the offender's voting rights); see also SCHÖNKE & SCHRÖDER, supra note 47, at 634. This provision, which was primarily grounded in rehabilitation ideals, was legally unprecedented.
54. See TRÖNDLE & FISCHER, supra note 41, at 291. If the denial of voting rights is considered a criminal sanction, the severity of the offense and considerations of general prevention may be decisive. See SCHÖNKE & SCHRÖDER, supra note 47, at 634-35.
55. See SCHÖNKE & SCHRÖDER, supra note 47, at 632; TRÖNDLE & FISCHER, supra note 41, at 290.
56. See SCHWARZ, supra note 13, at 40.
57. See, e.g., Hans Meyer, Wahlgrundsätze und Wahlverfahren, in 2 HANDBUCH DES STAATSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND 269,270
58. (Josef Isensee & Paul Kirchhof eds., 1987).
59. See SCHWARZ, supra note 13, at 95; Meyer, supra note 52, at 270.
60. See SCHWARZ, supra note 13, at 93. The constitutional arguments made in Germany parallel the U.S. challenges to the denial of the franchise under the Equal Protection Clause and the Voting Rights Act of 1965. See infra notes 107-13, 130 and accompanying text. The German Constitutional Court implicitly upheld section 45. See infra note 64 and accompanying text.
61. See TRÖNDLE & FISCHER, supra note 41, at 249.
62. See id. at 250; see also Nelles, supra note 29, at 21 (arguing that the deprivation of voting rights cannot be considered a Massregel-a measure designed to protect public safety-because it is textually grouped with penalties rather than security-based restrictions on an individual's freedom and fails to accomplish any significant preventive purpose).
63. LACKNER & KÜHL, supra note 45, at 282.
64. Section 46 does not explicitly list this goal. Instead it has been read into other sections of the Criminal Code. See, e.g., FRANZ STRENG, STRAFZUMESSUNG UND RELATIVE GERECHTIGKEIT 162-64 (1984).
65. See TRÖNDLE & FISCHER, supra note 41, at 293-94. The German legislature intentionally avoided providing a clear hierarchy of penological goals in section 46. See, e.g., DANIEL J. FISCHER, DIE NORMIERUNG DER STRAFZWECKE NACH VORBILD DER U.S. SENTENCING GUIDELINES-EINE CHANCE FüR DAS DEUTSCHE (STEUER-)STRAFRECHT? 33-34 (1999). Frequently resocialization is viewed as the highest goal. See id. at 59. However, the German courts have adhered to the so-called Vereinigungstheorie (combination theory) which attempts to balance all penological goals. See, e.g., BVerfGE 45, 187 (239); BVerfGE [NStZ] (1994), 558. The recent decline of resocialization as a sentencing goal has increased uncertainty. See FISCHER, supra, at 63-64.
66. See SCHWARZ, supra note 13, at 47-48.
67. See id. (recounting arguments on both sides).
68. Nelles, supra note 29, at 21.
69. See TRÖNDLE & FISCHER, supra note 41, at 290.
70. See BVerfGE 36,139 (142); see also SCHWARZ, supra note 13, at 92.
71. See Nelles, supra note 29, at 23-24.
72. See id.
73. For an account of a few spectacular cases in which the accused were disenfranchised, see SCHWARZ, supra note 13, at 19.
74. The German Constitutional Court has officially recognized rehabilitation and réintégration of an offender as sentencing goals because the welfare state mandates that the state and the community care for the offender. See BVerfGE 35, 202 (235-36) (the so-called Leeac/i-Judgment), quoted in ROXIN, supra note 19, at 46.
75. See U.S. CONST, arts. I, II; amends. XIV, XVII, XIX, XXIV, XXVI.
76. See Andrew Shapiro, The Disenfranchised, AM. PROSPECT, Nov.-Dec. 1997, at 60; see aZso Right of Ex-Prisoners To Vote in Federal Elections: Hearings on H.R. 906 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (1999) (testimony of Viet D. Dinh, Assistant Professor of Law and Deputy Director of Asian Law and Policy Studies Program, Georgetown University Law Center).
77. Under English law, attainted persons could not retain, inherit, or pass an estate to their heirs. See BLACK'S LAW DICTIONARY 311 (5th ed. 1979) (defining "corruption of blood").
78. See Howard Itzkowitz & Lauren Oldak, Restoring the Ex-Offender's Right to Vote: Background and Developments, 11 AM. GRIM. L. REV. 721, 724 (1973). These concepts survived in England until the late nineteenth century.
79. See J.M. KELLY, A SHORT HISTORY OF WESTERN LEGAL THEORY 344 (1992).
80. SEE 2 BERNARD SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES: RIGHTS OF THE PERSON 800 (1968).
81. See Itzkowitz & Oldak, supra note 72, at 726.
82. See U.S. CONST, art. Ill, §3, cl. 2.
83. See Demleitner, supra note 6, at 79.
84. These groups filed amicus briefs in Richardson v. Ramirez supporting full suffrage rights for ex-offenders. 418 U.S. 24, 84-85 (1974) (Marshall, J., dissenting).
85. See, e.g., Hans-Heinrich Jescheck, Die kriminalpolitische Konzeption des Alternativ-Entwurfs eines Strafgesetzbuchs (Allgemeiner Teil), 80
86. ZEITSCHRIFT FüR DIE GESAMTE STRAFRECHTSWISSENSCHAFT (ZSTW) 54, 54-55 (1968).
87. See Itzkowitz & Oldak, supra note 72, at 755-57. Even though a number of states, such as California and New York, gained favorable court decisions upholding their broad disenfranchisement statutes, their respective legislatures subsequently narrowed the provisions dramatically.
88. The statutory information provided in this Article is derived primarily from OFFICE OF THE PARDON ATTORNEY, U.S. DEP'T JUSTICE, CIVIL DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE SURVEY (1996) and Allard & Mauer, supra note 8.
89. Currently, only Maine, Massachusetts and Vermont do not exclude prison inmates from voting. In New Hampshire, a trial court has struck down the disenfranchisement of inmates under state constitutional provisions. However, the state supreme court has not yet rendered a final decision on the issue. See id. Utah, on the other hand, recently moved to disenfranchise its inmates. See id. In response to inmates' attempts to form a political action committee, Massachusetts is currently considering a constitutional amendment to bring about the same result. See id.
90. Although this Article focuses on those released from confinement but burdened by the denial of political rights, many of the arguments put forth can also be extended to incarcerated offenders. Correction officials have traditionally justified inmate disenfranchisement with practical concerns, such as the arrangement of voting booths in prisons and the potential impact of the inmate vote in local elections, especially in rural areas. Any pragmatic justifications for denying those incarcerated the right to vote, however, should be subject to serious scrutiny since Germany, like many other countries, allows, enables, and even encourages prisoners to vote. The same, of course, holds true for the three U.S. states which currently grant the franchise to prison inmates.
91. Even South Africa has recently joined the group of countries (and U.S. states) which allow inmates the right to participate in the democratic process; In a decision rendered in the spring of 1999, the South African Constitutional Court rejected the denial of voting rights to prison inmates absent passage of a generally applicable statute. See August v. Electoral Comm'n, 1999 (8) SALE 1 (CC). The interim South African Constitution had explicitly permitted the disqualification of those imprisoned for specified serious offences, which were statutorily defined as "'(i) [m]urder, robbery with aggravating circumstances and rape; or (ii) any attempt to commit [such an] offence.'" Id. at 2. The current Constitution no longer provides for such disqualifications, and neither does the Electoral Act. See id. at 3-4. The Constitutional Court, therefore, held that all prison inmates must be permitted to cast their ballot in elections unless Parliament enacts a generally applicable statute to the contrary.
92. See OFFICE OF THE PARDON ATTORNEY, supra note 80, app. A.
93. See id. at 126.
94. In this respect any automatic collateral consequence can be likened to a mandatory minimum penalty which requires the judge to impose a (minimum) sentence once an offender is found guilty of the requisite statutory violation. With prosecutorial assistance, however, judges may be able to avoid mandatory minimum sentences if they consider them unjust in the individual case. For an empirical discussion of substantial assistance motions which allow federal judges to sentence an offender below the mandatory minimum, see generally Linda Drazga Maxfield & John H. Kramer, Substantial Assistance: An Empirical Yardstick Gauging Equity in Current Federal Policy and Practice, 11 FED. SENTENCING REP. 6 (1998).
95. See generally Koon v. United States, 518 U.S. 81, 110 (1996) (finding that collateral employment consequences did not merit downward departure under the federal sentencing guidelines because they were already considered by the guideline provision under which the offenders were sentenced).
96. See Itzkowitz & Oldak, supra note 72, at 755-57.
97. SEE GLENN EDWARD MURRAY, COLLATERAL CONSEQUENCES OF CRIMINAL CONDUCT 15 (1992).
98. See OFFICE OF THE PARDON ATTORNEY, supra note 80, at 31.
99. See, e.g., id. at 129-30 (restoring an offender's civil rights upon expungement of his record by the court of conviction in Utah); id. at 136 (restoring an offender's civil rights upon final discharge issued by the sentencing court in Washington).
100. See MURRAY, supra note 86, at 15 (using New York as an example of a state where voting rights may be restored by executive pardon).
101. See, e.g., Ed Anderson, Foster Won't Hurry Pardons, TIMES-PICAYUNE, Dec. 28, 1998, at Bl;
102. Few Have Received Pardons from Bush, SAN ANTONIO EXPRESS-NEWS, Jan. 23, 2000, at ISA;
103. Michael Rezendes, Granting Pardons No Priority for Celluci in Break with Custom, BOSTON GLOBE, Nov. 26, 1999, at Al. Although some disagreement exists over the issue, presidential pardons of federal offenders have been held to restore the right to vote in state elections. See, e.g., Cowan v. Prowse, 19 S.W. 407, 411 (Ky. Ct. App. 1892);
104. Jones v. Board of Registrars, 56 Miss. 766, 769 (1879);
105. Randall H. Bryant, II, Effect of Presidential Pardon-State Civil Rights Restored-§ 2255 Petition Rendered Moot-Bjerkan v. United States, 14 AM. GRIM. L. REV. 335, 339 (1976);
106. Comment, Presidential Clemency and the Restoration of Civil Rights: Appraising the Consequences of a Full Article II Pardon, 61 IOWA L. REV. 1427, 1428 (1976). For arguments to the contrary, see United States v.
107. Noonan, 906 F.2d 952, 960 (3d Cir. 1990) (holding that a presidential pardon does not entitle the recipient to expunction of all court records relating to his conviction); KATHLEEN DEAN MOORE, PARDONS 83 (1989) ("[A] presidential pardon does not, in itself, restore any of the civil or professional rights lost as a result of a criminal conviction.");
108. Daniel T. Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 TEX. L. REV. 569, 633 n.367 (1991).
109. For a discussion of the decline in presidential pardons, see MOORE, supra, at 82-83; Kobil, supra, at 602-04; John Elvin, Pardon Me, America, INSIGHT ON NEWS (News World Communications, Inc.), Oct. 26,1998, at 14.
110. See Human Rights Watch, Felon Laws Bar 3.9 Million Americans from Voting (visited Jan. 16, 2000) . For figures from other states, see Human Rights Watch, Fact Sheet: States That Bar Ex-Offenders from Voting (visited Jan. 16, 2000) .
111. See OFFICE OF THE PARDON ATTORNEY, supra note 80, app. A.
112. See id. at 2-3.
113. See Kobil, supra note 90, at 610 (noting that at the state level, "the most important factor in successful clemency applications appears to be the widespread support of influential individuals in the community" rather than considerations of justice and fairness).
114. See, e.g., Shapiro, supra note 7, at 560 (discussing attempts by states to justify disenfranchisement in the name of state interest); see also Dillenburg v. Kramer, 469 F.2d 1222, 1224 (9th Cir. 1972) (recognizing the difficulty in defining a justifiable state interest for disenfranchisement).
115. Even though ex-offenders are still kept from the voting booth in many states, they are more likely to be on the roll than they were in 1950. Rehabilitation, the premier sentencing goal during the 1960s, mandated the abolition of collateral consequences that inhibited the societal réintégration of exoffenders. With the demise of rehabilitation as a goal of punishment, the pressure to abandon collateral sentencing consequences also evaporated. See supra notes 77-79 and accompanying text.
116. Another argument occasionally put forth to support disenfranchisement is based on Lockean social contract theory. The argument assumes that people who break the law authorize society to remove them from further participation in the political process. See Harvey, supra note 7, at 1169-70. However, that claim fails to rationalize and legitimate the cause and extent of such exclusion. See id. at 1170.
117. See, e.g., Note, supra note 7, at 1302-03; Shapiro, supra note 7, at 561.
118. See, e.g., Green v. Board of Elections, 380 F.2d 445, 451-52 (2d Cir. 1967). Without justification, Judge Friendly noted in his panel opinion that: [I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives, who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. This is especially so when account is taken of the heavy incidence of recidivism and the prevalence of organized crime. A contention that the equal protection clause requires New York to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be. Id. (emphasis added) (citation omitted). In addition to the tangible concern about corruption of the electoral process, Professor Fletcher also points to a mystical aspect of the argument-the idea that tainted people will corrupt the electoral process; felons are tainted and therefore will spread their taint to the electoral process. George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895,1899 (1999).
119. See, e.g., Note, The Equal Protection Clause as a Limitation on the States'Power To Disfranchise Those Convicted of a Crime, 21 RUTGERS L. REV. 297, 298-300 (1967).
120. See, e.g., Hilde Tubex, Dangerousness and Risk: From Belgian Positivism to New Penology (1999) (unpublished manuscript, on file with author).
121. Courts have upheld restrictions on the First Amendment rights of prison inmates. See Massachusetts Prisoners Ass'n Political Action Comm. v. Cellucci, No. 97-6111-C, slip op. at 8 (Suffolk Super. Ct. Oct. 15, 1998) (upholding prohibition on formation of Political Action Committee within Massachusetts prisons because of valid and legitimate penological interests).
122. Voting is [] about expressing biases, loyalties, commitments, and personal values. Fletcher, supra note 99, at 1906.
123. Excluding from the electorate those who have felt the sting of the criminal law obviously skews the politics of criminal justice toward one side of the debate. Id.
124. Justice Marshall discusses these arguments in his dissenting opinion in Richardson v. Ramirez, 418 U.S. 24, 79 (1974) (Marshall, J., dissenting). His additional argument that the state has criminalized voting fraud and has systems in place to detect and prosecute it, see id. at 79-80, denies the need and the rationale for all measures that treat ex-offenders differently than other voters.
125. See id. at 79.
126. See id. at 56 (denying equal protection challenge to ex-offender disenfranchisement provision).
127. See id. at 41-56. The majority's reading of Section 2 has been harshly attacked. See Shapiro, supra note 7, at 546 nn.50-51 (citing numerous com-mentators who have criticized the majority opinion).
128. See Richardson, 418 U.S. at 51. Although the Fourteenth Amendment in Section 2 refers to treason and other crimes, the statutes re-admitting the Southern states into the union use the phrase such crimes as are now felonies at common law. That, however, was a narrowly circumscribed category at the time. See infra note 139.
129. Justice Marshall in dissent argued that the majority's reasoning was based on a flawed historical analysis. See Richardson, 418 U.S. at 56-86 (Marshall, J. dissenting); see also Daniel R. Ortiz, Pursuing a Perfect Politics: The Allure and Failure of Process Theory, 77 VA. L. REV. 721, 731 (1991) (arguing that society is only upset by inaccurate subjective discrimination);
130. Gary Reback, Note, Disenfranchisement of Ex-felons: A Reassessment, 25 STAN. L. REV. 845, 850-56 (1973) (arguing that Section 2 of the Fourteenth Amendment does not support disenfranchisement of convicted felons).
131. 947 F. Supp. 954 (S.D. Miss. 1995).
132. See id. at 973-76.
133. See id.
134. See Fletcher, supra note 99, at 1907.
135. While incapacitation is generally associated with imprisonment, an 1878 English bill used the term to prohibit convicted offenders from voting. See JOHN S. JAMES, III, STROUD'S JUDICIAL DICTIONARY 1329 (4th ed. 1973). The only rationale for disenfranchisement that makes sense is that felons, by virtue of their crime and their conviction, forfeit their right to participate in the political process. Fletcher, supra note 99, at 1899.
136. 91 N.E. 1075,1075-76 (111. 1910).
137. See generally Demleitner, supra note 6; Fletcher, supra note 99; Ortiz, supra note 110, at 731; Note, supra note 7.
138. See ESSER, supra note 22, at 89.
139. See Note, supra note 7, at 1310-11.
140. See Fletcher, supra note 99, at 1897. How an ex-offender experiences such exclusionary mechanisms will depend on individual sensibilities. However, their recurrence, permanence and cumulative character are likely to impact almost every ex-offender.
141. U.S. CONST, art. XIV, §2.
142. The historical information presented here draws heavily on Justice Rehnquist's majority opinion in Richardson v. Ramirez, 418 U.S. 24, 41-55 (1974). See also Virginia E. Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 CASE \V. RES. L. REV. 727, 738-43 (1998); Shapiro, supra note 7, at 540-43.
143. See Shapiro, supra note 7, at 549.
144. See, e.g., McLaughlin v. City of Canton, 947 F. Supp. 954, 976-78 (S.D. Miss. 1995) (undertaking, on the court's own motion, research into the history of Mississippi's disenfranchisement provision).
145. Immediately after the Civil War and the liberation of slaves, blacks were probably more likely than whites to engage in bigamy, as legally defined. By allowing the sale of persons, slavery had severely upset family structures, including marriages. Often slaves, whose spouses had been sold, remarried without obtaining a divorce or confirming the death of their former spouse. See Katherine Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 YALE J.L. & HUMAN. 251, 282-84, 305 (1999).
146. 471 U.S. 222, 233 (1985).
147. See id. at 229-32.
148. See id. at 232.
149. See FELLNER & MAUER, supra note 4, at 8-11; Hench, supra note 122, at 765-68; Harvey, supra note 7, at 1149-59.
150. For litigation strategy involving the Voting Rights Act, see generally Harvey, supra note 7; Shapiro, supra note 7.
151. See Baker v. Pataki, 85 F.3d 919, 928-32 (2d Cir. 1996).
152. See Voting Rights of Former Offenders Act, H.R. 568, 105th Cong. (1997); H.R. 3028,104th Cong. (1996); see also Shapiro, supra note 70, at 60.
153. Civic Participation and Rehabilitation Act of 1999, H.R. 906, 106th Cong. (1999);
154. see Right of Ex-Prisoners To Vote in Federal Elections: Hearings on H.R. 906 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 106th Cong. (1999) (testimony of Gillian E. Metzger, staff attorney Brennan Center for Justice at NYU School of Law).
155. See, e.g., AMERICAN BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE: LEGAL STATUS OF PRISONERS 145 (1981) (standard 23-8.4); MODEL PENAL CODE §306.3(1) (1974); FELLNER & MAUER, supra note 4.
156. Article 25. Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
157. (b) To vote. . . at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, 179. The United States ratified the ICCPR on June 8, 1992. See FRANK NEWMAN & DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS 41-42 (2d ed. 1996) (outlining the reservations, understandings and declarations the U.S. Senate added in consenting to ratification of the Treaty).
158. See Richardson v. Ramirez, 418 U.S. 43, 46 (1974) (citing Representative Eckley of Ohio).
159. By the mid-nineteenth century, the European powers united against privateering and piracy. The maxim that pirata est hostice humani generis (a pirate is an enemy of the human race) had seeped from the treatises on international law into the political psyches of governments. Ethan A. Nadelman, Global Prohibition Regimes: The Evaluation of Norms in International Society, reprinted in TRANSNATIONAL CRIME 479, 490 (Nikos Passas éd., 1999).
160. See Davis v. Beason, 133 U.S. 333, 348 (1890) (upholding Idaho statute that denies voting rights to any individual practicing or counseling polygamy or bigamy); Murphy v. Ramsey, 114 U.S. 15, 39-45 (1885) (upholding an 1882 congressional act that bars any man or woman practicing polygamy or bigamy from voting).
161. See Otsuka v. Kite, 414 P.2d 412, 419 (Cal. 1966) (discussing Daws, 133 U.S. 333, and Murphy, 114 U.S. 15).
162. In discussing the term felony at common law, the Otsuka court pointed to its historical contingency. Typical felonies at common law were murder, manslaughter, mayhem, rape, arson, robbery, burglary, and larceny. Otsuka, 414 P.2d at 421 n.10.
163. ARTHUR W. CAMPBELL, LAW OF SENTENCING 406 (2d ed. 1991) (quoting DONALD J. NEUMAN, CONVICTION: A DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL 209 (1966)).
164. See Helga Novvotny, Wer bestimmt die Zeit?, in WAS IST ZEIT? 81, SI86 (Kurt Weis ed., 1995).
165. See Kurt Weis, Zeitbild und Menschenbild: Der Mensch als Schöpfer und Opfer seiner Vorstellungen von Zeit, in WAS IST ZEIT?, supra note 141, at 23, 28.
166. See §45b StGB; see also SCHÖNKE & SCHRÖDER, supra note 47, at 634.
167. Richardson v. Ramirez, 418 U.S. 24, 79 (1974) (Marshall, J., dissenting) (quoting brief filed in opposition to the grant of certiorari by California's Secretary of State).
168. See SCHWARZ, supra note 13, at 45.
169. See id. at 47.
170. See id.
171. 114 U.S. 15, 39-45 (1885).
172. See fd. at 42-44.
173. 356 U.S. 86, 97 (1958) (plurality opinion) (holding denationalization of native-born U.S. citizen after conviction for desertion in wartime violates the Eighth Amendment); see also Hawker v. New York, 170 U.S. 189, 197 (1898) (holding that denial of medical license did not amount to punishment but rather 'the conviction of a felony is evidence of the unfitness of such persons as a class' (quoting Foster v. Police Comm'rs, 102 Gal. 483, 492 (1894))).
174. Trop, 356 U.S. at 96-97.
175. See Green v. Board of Elections, 380 F.2d 445, 450 (2d Cir. 1967).
176. See id. at 451-52. Alternatively, the court held that the founding fathers did not consider disenfranchisement to be cruel and unusual punishment since it existed when the Eighth Amendment was passed. See id. In addition, the court viewed the large number of states with such provisions as indicative of the constitutionality of the ban on voting rights for ex-offenders. See id.
177. See Otsuka v. Kite, 414 P.2d 412, 416 (Gal. 1966) (holding that disqualification from the franchise is an additional punishment for the crime). The Supreme Court has repeatedly been confronted with the question of whether a particular sanction constitutes punishment. See, e.g., California Dep't of Corrections v. Morales, 514 U.S. 499, 514 (1995) (holding that a California statute which amends parole procedures did not increase the defendant's punishment); Department of Revenue v. Kurth Ranch, 511 U.S. 767, 779-80 (1994) (examining whether Montana's drug tax is punishment or revenue raising); United States v. Ward, 448 U.S. 242, 251 (1980) (determining that the monetary penalty imposed by the Federal Water Pollution Control Act is not punitive); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165 (1963) (reviewing whether statutes that take away United States citizenship for leaving the United States during a national emergency constitute punishment). For a discussion of the civil-criminal distinction, see, for example, Mary M. Chen, Constitutional Limits on Using Civil Remedies To Achieve Criminal Law Objectives: Transcending and Understanding the CriminalCivil Law Distinction, 42 HASTINGS L.J. 1325 (1991);
178. Susan R. Klein, Redrawing the Criminal-Civil Boundary, 2 BUFF. CRIM. L. REV. 679 (1999).
179. See Note, The Need for Reform of Ex-Felon Disenfranchisement Laws, 83 YALE L.J. 580, 585 n.28 (1974) (This is a particularly plausible interpretation for state laws which are contained in the 'penal' sections of their codes ....).
180. For a different normative analysis, see Andrew von Hirsch & Martin Wasik, Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework, 56 CAMBRIDGE L.J. 599, 601 (1997). The authors treat civil disqualifications, including denial of the franchise, as civil measures designed to manage risk. See id.
181. For potential issues arising under the U.S. Constitution from the classification of disenfranchisement as punishment, see generally Reback, supra note 110.
182. See Thomas Weigend, Neoklassizismus-ein transatlantisches Missverständnis, 94 ZEITSCHRIFT FüR DIE GESAMTE STRAFRECHTSWISSENSCHAFT (ZSTW) 801, 802 (1982). Despite appearances, this is not accurate. Drug courts, for example, indicate that rehabilitation continues to exist as a goal. However, retributive and deterrent concepts have modified rehabilitation dramatically. See, e.g., Sue Rex, A New Form of Rehabilitation?, in
183. PRINCIPLED SENTENCING: READINGS ON THEORY & POLICY 34, 34-41 (Andrew von Hirsch & Andrew Ashworth eds., 2d ed. 1998) [hereinafter PRINCIPLED SENTENCING].
184. For an account of the decline of the rehabilitative system, see MOORE, supra note 90, at 66-72.
185. See Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J. GRIM. L., CRIMINOLOGY & POLICE SCI. 347, 354 (1968).
186. See id.
187. See, e.g., Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 630-52 (1996).
188. Substantial resistance has also developed against the use of such penalties, however. See generally Toni Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991).
189. Shame requires an audience; guilt is internal. See Massaro, supra note 162, at 1900-03. Shaming is also culture dependent. See id. at 1904. Thus, if offenders belong to a (sub-)culture that does not value voting, they may not be ashamed. See id. at 1904-05.
190. Denial of the franchise to African-Americans alienated them increasingly from the political and legal system. See, e.g., Neil P. Cohen & Dean Hill Rivkin, Civil Disabilities: The Forgotten Punishment, 35 FED. PROBATION, June 1971, at 19, 25.
191. See NlGEL WALKER, SENTENCING-THEORY, LAW AND PRACTICE 426 (1985).
192. See Massaro, supra note 162, at 1883 (noting that among other prerequisites, for shaming to be effective, the shaming must be communicated to the group).
193. The stigmatizing and deterrent effect of such sanctions was also magnified at that time because most individuals lived in small communities in which all inhabitants were likely to have known the offender or his family. See Itzkowitz & Oldak, supra note 72, at 726-27.
194. The mort civile in France, which declared an offender legally dead, served such deterrent purposes. See WEITHASE, supra note 17, at 89; see also Ex-Offenders Voting Rights Act: Hearings on H.R. 9020 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. on the Judiciary, 93d Cong. 29 (1974) (testimony of the Hon. John R. Dunne, State Senator, State of New York, member, ABA Commission on Correctional Facilities and Services) [hereinafter Ex-Offenders Voting Rights Act]. John Locke once noted that '[t]he being rightfully possessed of great power and riches ... is so far from being an excuse [for unlawful oppression], that it is a great aggravation of it....' KELLY, supra note 72, at 240 (quoting JOHN LOCKE, LEVIATHAN). Although Locke's remarks applied to misgovernment, they can be extended to cover and justify the additional punishment of the rich and powerful.
195. Sutherland and Cressey, for example, list civil death, infamy and the loss of voting rights under social degradation. EDWIN H. SUTHERLAND & DONALD R. CRESSEY, CRIMINOLOGY 308-09 (8th ed. 1970).
196. See Note, supra note 7, at 1307; cf. Trop v. Dulles, 356 U.S. 86, 112 (1958) (Brennan, J., concurring). But see John P. Reed & Dale Nance, Society Perpetuates the Stigma of a Conviction, 36 FED. PROBATION, June 1972, at 27, 30 (citing a localized study from 1971 showing that [t]he public has some knowledge of 'civil disability.' That knowledge, however, is not particularized,).
197. Based on personal conversations with German law faculty, I have concluded that even in Germany knowledge of the existence of disenfranchisement as a sanction is tenuous. This is the case even though section 45 is part of the German Criminal Code.
198. Any general deterrence argument is based on the disputed concept of individuals as rational actors who will assess costs, including potential punishment, and benefits prior to engaging in any (criminal) action.
199. Cf. Trop, 356 U.S. at 112 (Brennan, J., concurring) (And as a deterrent [denationalization] would appear of little effect, for the offender, if not deterred by thought of the specific penalties of long imprisonment or even death, is not very likely to be swayed from his course by the prospect of expatriation.).
200. Itzkowitz & Oldak, supra note 72, at 726.
201. See, e.g., SCHWARZ, supra note 13, at 49-54 (listing offenses which allow a judge to disenfranchise an offender at sentencing).
202. See FISCHER, supra note 59, at 69-70;
203. SCHWARZ, supra note 13, at 47;
204. TRÖNDLE & FISCHER, supra note 41, at 289-90.
205. See MOORE, supra note 90, at 72-76.
206. See Massaro, supra note 162, at 1891.
207. On proportionality and desert as a limitation on punishment, see generally NORVAL MORRIS, PUNISHMENT, DESERT, AND REHABILITATION (1977)
208. and Andrew von Hirsch, Proportionate Sentences: A Desert Perspective, in PRINCIPLED SENTENCING, supra note 158, at 168, 168-79.
209. Von Hirsch and Wasik have also proposed "'outer' proportionality constraints" for civil disqualifications. Von Hirsch & Wasik, supra note 156, at 612-15.
210. See Nelles, supra note 29, at 19.
211. See id.
212. Denial of the franchise has also been attacked because of its disparate effect on individual offenders. That argument proves too much, however, as it applies to any type of sanction. See, e.g., U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (1998) (stating that physique is not "ordinarily relevant" in departing from the guideline range). Some appellate courts have nevertheless upheld downward departures under the Federal Sentencing Guidelines based on the disparate impact of a prison sentence on an offender. See, e.g., Koon v. United States, 518 U.S. 81, 111-12 (1996) (upholding a downward departure for former police officers who would be unusually susceptible to abuse in prison); United States v. Graham, 83 F.3d 1466, 1480-81 (D.C. Cir. 1996) (noting that extreme vulnerability to abuse in prison may justify a downward departure); United States v. Pokuaa, 782 F. Supp. 747, 748 (E.D.N.Y. 1992) (departing downward for a pregnant defendant who would have lost her parental rights otherwise).
213. 217 U.S. 349, 346-65, 380-82 (1910).
214. See Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (holding that a life sentence for a first offender convicted of possession of a large amount of cocaine does not violate the Eighth Amendment's proportionality requirement). The Court focused not only on whether the sentence is "cruel" but on whether it is "cruel and unusual." Id. (emphasis added). Under this test, the denial of voting rights would not pass muster because it was a penalty known at the time the Constitution was signed. For an account of the Rehnquist Court's treatment of excessive sentences, see CHRISTOPHER E. SMITH, THE REHNQUIST COURT AND CRIMINAL PUNISHMENT 39-56 (1997).
215. See, e.g., RICHARD WARD, CRIMINAL SENTENCING: THE NEW LAW 142-43 (1997).
216. See id. at 143 (citing the Minister of State at the Home Office).
217. See, e.g., D.A. THOMAS, PRINCIPLES OF SENTENCING 351 (2d ed. 1979).
218. See, e.g., BGHSt 44, 228 (228-33) (revoking the driver's license of a convicted rapist because the rape was committed in the offender's car).
219. See, e.g., International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, 179.
220. See SCHWARZ, supra note 13, at 95; see also Haig v. Canada [1993] D.L.R. 577, 613 ("All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist.")
221. See Ex-Offenders Voting Rights Act, supra note 168, at 30 (testimony of the Hon. John R. Dunne, State Senator, State of New York, member, ABA Commission on Correctional Facilities and Services);
222. see also Douglas R. Tims, Note, The Disenfranchisement of Ex-Felons: A Cruelly Excessive Punishment, 7 Sw. U. L. REV. 124, 135 (1975).
223. See, e.g., Thomas D. Elias, Democrats in Peril of Losing California Congressional Seats, WASH. TIMES, Oct. 11, 1998, at A4 (stating that former Congressman Dornan charged election fraud claiming that non-citizens had voted in congressional race);
224. Jean O. Pasco, Latino Groups Appreciate New Guide for Voters, L.A. TIMES, Aug. 6, 1998, at B1 (recognizing that officials were cleared of the charges of fraudulently registering voters before they became citizens).
225. See SCHWARZ, supra note 13, at 90.
226. See 18 U.S.C. § 2385 (1994).
227. See 5 U.S.C. § 7313 (1994).
228. Gubernatorial pardons could be viewed as an official declaration that the ex-offender no longer poses a danger to society and can be considered rehabilitated. They are a reward for those who have succeeded in reintegrating themselves and in ordering their lives so as to accord with the principles of society. The post-hoc pardon procedure, however, remains driven by numerous considerations, many unrelated to safety goals.
229. See § 45b StGB; see also SCHÖNKE & SCHRÖDER, supra note 47, at 634.
230. See, e.g., 42 U.S.C. § 14071 (1994) (adopting a registration program for sexually violent offenders and those who commit crimes against children).
231. See id. § 14071(b)(6) (providing for the length of the registration period). Although one can challenge the overall wisdom and specific line-drawing of this statute, it illustrates the overbreadth and lack of differentiation present in the disenfranchisement provisions. The English sex offender notification statue is tied to both the offense of conviction and the length of imprisonment imposed. In that respect, it resembles the German disenfranchisement provision which requires conviction of a specific offense and imposition of at least a six-month prison term. Only a sentence of thirty months or more will lead to an indefinite notification period under England's registration statute for sexual offenders. See WARD, supra note 184, at 103.
232. See supra notes 107-13,130 and accompanying text.
233. See, e.g., Fletcher, supra note 99, at 1903-06.
234. See supra note 70 and accompanying text.
235. See PAUL W. TAPPAN, CRIME, JUSTICE AND CORRECTION 429 (1960) (arguing for the abolition of punitive disabilities but allowing for the limited use of supplemental sanctions to protect community welfare).
236. For a discussion of the expressive power of the law, see Jean Hampton, Punishment, Feminism, and Political Identity: A Case Study in the Expressive Meaning of the Law, 11 CAN. J.L. & JURISPRUDENCE 23, 23 (1998).
237. See OFFICE OF THE PARDON ATTORNEY, supra note 80, at 2-3.
238. For arguments in favor of an expanded role for pardons in an era of harsh and inflexible sentencing laws, see MOORE, supra note 90. Moore finds pardons justified "when the lingering effects of a felony conviction add punishment beyond what is deserved." Id. at 168;
239. see also Kobil, supra note 90, at 573-75.
240. See also Damaska, supra note 160, at 347 (arguing that the adverse consequences flowing from a conviction are often unknown, even to participants in the criminal justice system, because they are frequently scattered through different bodies of law);
241. cf. SCHWARZ, supra note 13, at 61 (stating that removing the provision for Nebenstrafen from the German Criminal Code would create a "Visually incorrect impression'").
242. See SCHWARTZ, supra note 73, at 747.
243. Some states explicitly list treason as an offense that triggers an automatic denial of voting rights. For a selective listing, see Harvey, supra note 7, at 1147.
244. Green v. Board of Elections, 380 F.2d 445, 447 (2d Cir. 1967) (quoting the federal statute then applicable).
245. See id. at 452.
246. See supra note 208.
247. See infra Part IV.B.
248. Differences among the states indicate that the United States does not have a uniform sentencing culture. Therefore, durational limitations on disenfranchisement may vary between states.
249. Cf. Dillenburg v. Kramer, 469 F.2d 1222, 1225 (9th Cir. 1972) (criticizing Washington state's disenfranchisement regime as irrational because it tied the denial of voting rights to the nature of the punishment); Otsuka v. Hite, 414 P.2d 412, 422 (Cal. 1966) (asserting that the nature of punishment cannot determine whether someone is "a threat to the integrity of the elective process" because it is based on "indeterminate sentences and [the] proliferation of technical, malum prohibitum offenses");
250. Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2), 59 J. GRIM. L., CRIMINOLOGY & POLICE SCI. 542, 553 (1968) (arguing that it is preferable to tie occupational disqualifications to specific offenses rather than to the punishment imposed, and that automatic disqualifications, if permitted at all, should be narrowly targeted).
251. For a discussion of the prerequisites of an incapacitative sentence, see A.E. Bottoms & Roger Brownsword, Incapacitation and "Vivid Danger," in PRINCIPLED SENTENCING, supra note 158, at 105-06. The authors state that: Given the present state of the predictive art in relation to dangerousness sentences (a false positive rate of up to 66 per cent) we conclude that protective sentences would only very exceptionally be justified, the justification laying in the anticipated depth of the offender's violation of the rights of others (discounted by the degree of uncertainty) outweighing the depth of the known violation of the offender's right. Id.
252. Cf. von Hirsch & Wasik, supra note 156, at 606, 624 (arguing that the denial of voting rights is not justifiable on risk-prevention grounds).
253. 521 U.S. 346, 369 (1997).
254. See id. at 364.
255. Enumerating the offenses that trigger disenfranchisement will prevent the result of Otsuka v. Hite, 414 P.2d 412 (Cal. 1966). In the aftermath of that decision, administrative units decided which offenses constituted "crimes involving moral corruption and dishonesty, thereby branding their perpetrator as a threat to the integrity of the elective process." Id. at 414. As a consequence, disparity was rampant, and the situation was not remedied until California abolished the denial of voting rights to ex-offenders. See Ramirez v. Brown, 528 P.2d 378, 379 (1974);
256. Tims, supra note 190, at 131-32.
257. In drafting the U.S. Sentencing Guidelines, the Sentencing Commission drew largely on a sample of cases decided previously but also made some normative decisions. For a demand to see the Commission's database, see Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart (land): The Long Search for Administrative Sentencing Justice, 2 BUFF. GRIM. L. REV. 723, 813 (1999).
258. For a description of the approach of the English Court of Appeal, see Andrew Ashworth, Four Techniques for Reducing Sentence Disparity, in PRINCIPLED SENTENCING, supra note 158, at 227, 227-29;
259. D.A. Thomas, The Role of the Court of Appeal in the English Sentencing System, 10 FED. SENTENCING REP. 259, 261-62 (1998).
260. In April of 1999, the United Nations Commission on Human Rights adopted a resolution "acknowledging that democracy is a universal and fundamental human right." Harold Hongju Koh, Address at Inaugural Conference of the Democracy Forum for East Asia (July 13, 1999) (transcript on file with author).
261. See, e.g., von Hirsch & Wasik, supra note 156, at 606 (asserting that voting is an important civil right of which even prison inmates should not be deprived, especially in light of the racially discriminatory impact of disenfranchisement).
262. McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D. Miss. 1995).
263. August v. Electoral Comm'n, 1999 (8) SALR 14 (CC).
264. The judiciary and the legislature have recognized the importance of voting rights. See SCHWARTZ, supra note 73, at 549-50. The latter has broadened the franchise from property-owning white men over 21 years of age to men and women of all races who are over 18 years, independent of their economic status. See U.S. CONST, amend. XIV, XVII, XIX, XXIV, XXVI. The former has safeguarded voting rights and the equality of the votes cast by preventing gerrymandering and race-based exclusions. See generally Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962).
265. WasikFor drawbacks of guideline judgments in regulating the entire field of sentencing, see Ashworth, supra note 221, at 228-29.
266. See id. at 228.
267. See von Hirsch & Wasik, supra note 156, at 624 (criticizing the largely unfettered power of courts to impose civil disqualifications and recommending that legislation more narrowly circumscribing such judicial discretion be enacted).
268. See supra note 63 and accompanying text.
269. In its 1998 Report, Human Rights Watch and the Sentencing Project urged the United Nations Human Rights Committee and the United Nations Committee on the Elimination of Racial Discrimination to examine felony disenfranchisement in the United States. See FELLNER & MAUER, supra note 4, at 23.