Law in Contemporary Society

Felony Disenfranchisement: Just, Unjust, or Just Plain Racist?

-- By CalebGreig - 16 Feb 2012


Nationwide, more than 5 million Americans who have been convicted of a felony are denied the right to vote. Furthermore, they are denied various types of welfare. This often results in social disenfranchisement prompting a felon to resort back to crime. Racial minorities make up a disproportionately high number of the disenfranchised. According to the NAACP Legal Defense Fund, a staggering 13% of all African-American men in this country are disfranchised, and in some states up to one-third of the entire African-American male population is denied the right to vote. As a result of this exclusion, the political power of African-American and Latino communities is weakened. Despite studies that show Americans of different races using illegal drugs quantitatively on a similar scale, in some states black men have been admitted to prisons on drug charges at the rate twenty to fifty times that of white men.

So Why the Disproportion?

As Michelle Alexander explains in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, this discriminatory system operates in two major stages. Firstly, law enforcement officers necessarily possess extraordinary discretion when deciding whom to investigate, pull over, arrest, and ultimately charge.

This leads to the injection of personal bias and stereotypes into the policing process. The war on drugs exacerbates this prejudice as it almost exclusively targets low-income communities of racial minorities. Once charged, the accused are very rarely provided with meaningful legal representation and from the moment they enter the system they’re pressured to give up this right, as the system simply could not cope if everyone exercised it. Understaffed and overwhelmed, the criminal justice system is forced to get by as best it can, often by threatening counsel-less individuals with severe mandatory sentences and assigning an overworked public defender to the case. Accused who cannot afford bail will be kept in jail until the system can catch up and provide counsel. These conditions lead to extremely high rates of plea bargains, especially among minorities, who rely on public counsel at a disproportionately higher rate than whites. Additionally, these judgments are almost inevitably longer and more severe than judgments against those who can afford a private attorney.

Secondly, the Supreme Court has consistently rejected arguments that studies identifying possible bias in the justice system should affect the outcome of a particular case. In McCleskey? v. Kemp (1987), petitioner challenged a death sentence, drawing on a statistical study that found racial disparities in sentencing. The Court stated: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system." The problem was, the court added, "there is no limiting principle to the type of challenge brought by McCleskey? ," which involved a black man convicted of killing a white police officer. Until the criminal justice system finds a way to account for this prejudice, minorities will continue to be denied equal protection under the law.

Change seemed imminent in Farrakhan v. Gregoire (2011), where the Ninth Circuit initially ruled that Washington’s felon disfranchisement law was in clear violation of the federal Voting Rights Act. The court found “compelling” evidence of racial discrimination in Washington State’s criminal justice system at every level, in turn causing the disproportionate denial of the right to vote to racial minorities. This proved to be short-lived however. On October 7, 2010, the court, sitting en banc, reversed the earlier decision and ruled 11-0 that Washington’s felon disenfranchisement law did not violate the Voting Rights Act, as plaintiffs failed to show that the law was enacted with discriminatory intent.


Social Disenfranchisement

A primary goal of our criminal justice system is rehabilitation, however, it seems that we no longer engage in any serious effort to rehabilitate those convicted of serious crimes. Felons released from prison are subjected to many forms of social discrimination which often result in a lifetime of limitations and community exclusion. One common difficulty encountered is finding a place to live. Felons are ineligible for public housing assistance for at least five years, and some private housing policies can even exclude someone based on an arrest alone. Another common policy requires the termination of any tenant whose household members engage in criminal activity, even if the violation took place not on the tenant's premises and without his or her knowledge. Department of Housing and Urban Development v. Rucker (2002). Thus, many households are reluctant to allow relatives, especially those recently released from prison, to stay with them.

Once released from prison, felons face the uphill battle of finding employment. In fact, most states require ex-convicts to “maintain gainful employment” as a condition of their parole. However, employers discriminate on the basis of past convictions and even previous arrests. The former convict's job landing attempt, therefore, usually ends when the employer becomes aware of the felony. Additionally, newly released prisoners are slapped with a variety of legal fees and monetary penalties. The burden of these fees, or not being able to pay them, will push the felon back toward the prison system. These restrictions exemplify how we have severely strayed from the path of encouraging rehabilitation.

Political Disenfranchisement

Forty-eight states prohibit incarcerated felons from voting. Most extend the denial of this right to those on parole and some continue vote prohibition policies for years (even for life). In the states that allow it, to become re-enfranchised, felons must navigate bureaucratic obstacles and pay excessive fees. As was true in the past, today most felons won't put themselves through these requirements, preferring instead to avoid attention rather than risk the loss of welfare or other badly needed services.


Investing in public defender programs, easing the requirement of proving discriminatory purpose (in addition to impact) in Equal Protection claims (Washington v. Davis), and reforming assistance programs will protect and promote the reintegration of felons into society. This social enfranchisement will curtail the number of felons returning to prison, consequently decreasing the number of Blacks and Latinos behind bars—an integral step in combating this apparently unassailable racism.

I don't understand the theory of the revision here. I asked in the comments last time for more realism and clearer statement of the social situation. But the revisions make slight effort in that direction. We do not live in a society that regards rehabilitation as a goal of criminal justice. We imprison in order to incapacitate on a very wide scale, intentionally. We are holding a large number of young men, overwhelmingly poor, undereducated, underemployed, disproportionately from disfavored ethnic communities, who would otherwise be in the street, challenging our ability to maintain social stability. Our "stability maintenance" policy requires us to spend a larger proportion of our social surplus on imprisoning young men with little to lose than any other society on earth. Of course we also disfranchise them and put significant obstacles in the way of their recovering democracy. The point of the system is that it maintains social stability by discouraging what Aristotle called "democracy": rule by the poor.

Yet the essay counterfactually assumes that we are socially committed to rehabilitation, and that Equal Protection doctrine can be immensely expanded in its power, reversing the rule in Washington v. Davis, merely by referring to the central order-keeping policy of our oligarchy as "racism." This is not reality. Nor would it be sufficient to say we "ought" to be a democracy ruled by the poor, that we "ought" to send more Black men to college than to prison, that we "ought" to redistribute wealth so that 1% of the population no longer owns 40% of everything, and so on.

One route here is to describe the situation accurately, without proposing anything. Another is to propose politically feasible minor ameliorative changes, showing how they can be brought about in the actual political environment we have. A third is to describe a solution to the problem: a method for accomplishing democracy, that is, rule by the poor, despite the "stability maintenance" system of the current oligarchy. Unfortunately, that would be socialism, so it's not allowed.


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r5 - 22 Jan 2013 - 20:10:16 - IanSullivan
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