Are Felon Disenfranchisement Laws a Form of Racial Discrimination?
General Reference (not clearly pro or con)
1The term "other," according to the US Department of Justice report "Prisoners in 2009," includes: American Indians, Alaska Natives, Asians, Native Hawaiians, other Pacific Islanders, and people identifying two or more races.
2 The prisoner numbers are from the US Department of Justice Report, "Prisoners in 2009." The US population numbers are from the United States Census for 2010.
Are Felon Disenfranchisement Laws a Form of Racial Discrimination?
Eric H. Holder, JD, US Attorney General, stated the following in his Feb. 11, 2014 speech "Attorney General Eric Holder Delivers Remarks on Criminal Justice Reform at Georgetown University Law Center," available at www.justice.gov:
"In many states, felony disenfranchisement laws are still on the books. And the current scope of these policies is not only too significant to ignore – it is also too unjust to tolerate...
And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable. Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws. In three states – Florida, Kentucky, and Virginia – that ratio climbs to one in five."
The Washington Post stated the following in its July 29, 2012 editorial "A Lifetime Sentence for Felons," available at washingtonpost.com:
"In the midst of the civil rights movement, [President Lyndon] Johnson sounded a call to arms against racial disenfranchisement. Nearly 50 years later, that unfortunately remains a battle.
In an election year when many states have added dubious voter ID requirements sure to affect minority voters disproportionately, another set of impediments to the franchise worsens the problem: laws in 11 states, including Virginia, that disenfranchise felons. Given that African Americans constitute 38.2 percent of the prison population but just 12.6 percent of the general population, a disproportionate share of these disenfranchised people are black...
In Virginia, Kentucky and Florida, felon disenfranchisement affects a staggering one in five African Americans. There’s no excuse for that...
[T]he franchise should be automatically restored after a sentence is completed, as it is in Maryland. Johnson’s words ring hollow when 'the terrible walls which imprison men' continue to reinforce inequality in more ways than one."
Rand Paul, JD, US Senator (R-KY), stated the following in his Sep. 20, 2013 Washington Times Op-Ed, "The Devastating Collateral Damage of an Insidious Drug-War Weapon," available at paul.senate.gov:
"If I told you that in America almost 1 million African Americans were forever forbidden from voting you might think I was talking about Jim Crow 50 years ago. But you would be wrong. According to the Sentencing Project, a staggering number of non-violent individuals who have been released from prison, not on probation nor parole, and who have committed no further crimes are forever prohibited from voting. Many African Americans are prevented from ever voting because of the War on Drugs...
Today, the United States incarcerates more people than any other country in the world and the racial disparity in arrest rates has been absolutely devastating to the black community..."
In Farrakhan v. Gregorie, the United States Court of Appeals for the 9th Circuit stated the following in its Jan. 5, 2010 (2-1) ruling:
"[M]inority citizens of Washington state who have lost their right to vote pursuant to the state's felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state's criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to vote on account of race...
[R]acial minorities are overrepresented in the felon population based upon factors that cannot be explained by non-racial reasons. Given that uncontroverted showing, in the words of the district court, there can be 'no doubt that members of racial minorities have experienced discrimination in Washington's criminal justice system.'...
Plaintiffs have demonstrated that the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system."
The American Civil Liberties Union (ACLU) and the Rutgers Law School Constitutional Litigation Clinic stated in a Sep. 14, 2006 press release titled "ACLU and Rutgers Champion Basic Rights, Citing Racial Discrimination," which announced a petition urging the Inter-American Commission to investigate and declare U.S. felon voting restrictions a "violation of universally accepted human rights standards":
"Of the approximately 100,000 parolees and probationers subject to the state's felon-disfranchisement law, more than 60 percent are African American or Latino, which the ACLU and Rutgers say is in large measure a consequence of racial profiling in the criminal justice system. As a result, the political power of the African American and Latino communities in New Jersey is diluted because they are disproportionately excluded from voting...
The organizations are requesting that the Inter-American Commission investigate the claims made in their petition, declare the federal government and New Jersey and other states with similar post-incarceration voting restrictions in violation of universally accepted human rights standards, and most importantly, to urge all U.S. states to bring their felon disfranchisement laws into line with these standards."
S. David Mitchell, JD, Scholar in Residence at the University of Colorado, stated in his Dec. 2004 article "The New Invisible Man: Felon Disenfranchisement Laws Harm Communities," published in Bad Subjects magazine:
"The foundation of disenfranchisement was laid long before the Reconstruction era and continues to support a structure of African-American disenfranchisement that is more expansive, and impacts not only the individual African-American male ex-felon but also the African-American community as a whole...
Legally, African-Americans have achieved the status of citizen. Practically, African-Americans have to continue to fight obstacles set up to deny their citizenship. Historically, in a number of United States' jurisdictions, African-Americans have had to challenge poll taxes, literacy tests, grandfather clauses, whites-only primaries, and felon disenfranchisement laws, all designed to prohibit them from voting and thus negate their citizenship. All of the other forms of disenfranchisement have fallen by the wayside, save one — felon disenfranchisement laws."
Jeff Manza, PhD, Professor of Sociology and Political Science and Associate Director and Faculty Fellow at the Institute for Policy Research at Northwestern University, and Christopher Uggen, PhD, the Distinguished McKnight Professor of Sociology at the University of Minnesota, stated in their 2006 book Locked Out: Felon Disenfranchisement and American Democracy :
"Felon disenfranchisement thus has to be viewed as one of the many side effects of the peculiar history of racial politics in the United States.
In the abstract, felon disenfranchisement can be separated from race: state laws are literally race neutral, in that all who are convicted of felonies are subject to the same sanction. Moreover, modern defenders of the practice certainly draw upon nonracial reasons for their position, and we do not intend in this analysis to imply anything to the contrary. This does not, however, mean that there is no connection between race and felon disenfranchisement.
Indeed, when we ask the question of how we got to the point where American practice can be so out of line with the rest of the democratic world, the most plausible answer we can supply is that of race."
Marc Mauer, MSW, Executive Director of The Sentencing Project, stated in his Winter 2004 article "Felon Disenfranchisement: A Policy Whose Time Has Passed?," published in Human Rights magazine, a publication of the American Bar Association:
"Disenfranchisement policies have served various political purposes, most notably racial exclusion. In the post-Reconstruction period, coincident with the advent of poll taxes and literacy requirements, legislators in a number of southern states tailored their disenfranchisement statutes with the specific intent of excluding the newly freed black voters. They accomplished this by tying the loss of voting rights to crimes alleged to be committed primarily by blacks while excluding offenses held to be committed by whites. Such laws were in place for one hundred years before being struck down...
The racial impact of disenfranchisement policies is sometimes justified as an inevitable if unfortunate aspect of a race-neutral criminal justice system: if members of a particular racial or ethnic group are more involved in crime, the consequent disproportionate loss of voting rights is merely a result of their activity. Such an argument, though, ignores the compelling evidence of discriminatory racial dynamics in the criminal justice system-racial profiling by law enforcement agencies, the racially disparate prosecution of the war on drugs, and glaring inequities in adequacy of counsel as a function of both race and class."
Jason L. Riley, Editorial board member of the Wall Street Journal, stated the following in his Feb. 12, 2014 article "Holder (Hearts) Felons," published in the Wall Street Journal:
"Blacks are disproportionately affected by felon disenfranchisement laws because a disproportionate number of blacks are felons. The problem is black criminality, not racist laws. White felons face the same voting restrictions, which date not to America's post-Civil War period, as Mr. Holder suggested in his remarks, but to medieval Europe by way of ancient Greece and Rome. Indeed, many of the voter-disenfranchisement laws in this country were passed long before blacks could even vote...
The Obama administration would rather focus on white racism instead of black behavior. But before Republicans follow along, they might consider how these liberal policies impact the law-abiding members of the black community so often ignored by the left. Eliminating mandatory minimum sentences for drug dealers means that these thugs return to the ghetto sooner rather than later to raise hell. Similarly, re-enfranchising black felons gives people who broke the law the ability to dilute the votes of black people who followed it—the very same law-abiding blacks who in the vast majority of cases were the felons' victims."
Pam Bondi, JD, Florida Attorney General, stated the following in her Mar. 16, 2011 article "Clemency Shift Upholds Rule of Law," available at tampabay.com:
"Upon my election as attorney general, I inherited clemency rules that allowed the vast majority of felons to have their civil rights restored upon the completion of their criminal sentence, without the need to apply and without any mandatory waiting period...
Last week [Florida]... reinstated a requirement that those seeking restoration submit an application and imposed a minimum five-year waiting period..
For those who may suggest that these rule changes have anything to do with race, these assertions are completely unfounded. Justice has nothing to do with race. In a recent case, the 11th U.S. Circuit Court of Appeals examined the historical record and soundly rejected the argument that Florida's prohibition on felon voting was originally motivated by racial discrimination."
Roger Clegg, JD, President and General Counsel for the Center for Equal Opportunity, stated in his article "Felon Disenfranchisement Is Constitutional, And Justified," accessed Sep. 5, 2006 on the website of the National Constitution Center:
"It is true that the Supreme Court has upheld congressional bans on certain voting practices and procedures - like literacy tests - that are not themselves discriminatory on their face but have disproportionately excluded racial minorities from voting. But, as the Court later stressed, these cases involved bans aimed at practices that historically have been rooted in intentional discrimination. The disenfranchisement of criminals, on the other hand, has no such roots.
Indeed, Section 2 of the 14th Amendment itself contemplates this disenfranchisement, since it acknowledges that 'the right to vote' may be 'abridged ... for participation in rebellion, or other crime....' Surely this is some evidence that the reasons for disenfranchising criminals need not be racially discriminatory...
The fact that an overwhelming number of states have passed such disenfranchisement laws also indicates that something other than racial discrimination is indeed the motive."
Booker T. Stallworth, Communication Director of the Evergreen Freedom Foundation, stated in his Apr. 7, 2006 article "ACLU's Lawsuit for Felons' Voting Rights Dishonors Crime Victims," published in Human Events magazine:
"Some, including the American Civil Liberties Union (ACLU), equate convicted felons who have failed to complete all the obligations of their sentences, with blacks of the Old South who committed no crime, yet were denied their basic 14th Amendment due process rights. That is not only overblown rhetoric that doesn't live up to the facts; it is blatantly offensive and does a complete injustice to the history of the civil rights movement...
This type of rhetoric demonstrates ignorance of what a poll tax really is, and glosses over what is truly at issue: the rights of the public, and especially crime victims, to see justice carried out and those convicted of felonies meet all of their court-imposed obligations...
As we clean ineligible voters from the roll and restore integrity to our voting process, let’s debate victim restitution and other key issues, but let's do so without resorting to rhetorical hyperbole. Some terms -- Nazi, plantation, concentration camp, poll tax, etc. -- are too powerful to be cheapened and used inappropriately."
Edward Feser, PhD, Instructor of Philosophy at Pasadena City College, stated in his Spring 2005 article "Should Felons Vote?," published in City Journal:
"The frequently heard charge is that disenfranchising felons is racist because the felon population is disproportionately black. But the mere fact that blacks make up a lopsided percentage of the nation's prison population doesn't prove that racism is to blame.
Is the mostly male population of the prisons evidence of reverse sexism? Of course not: men commit the vast majority of serious crimes - a fact no one would dispute - and that's why there are lots more of them than women behind bars.
Regrettably, blacks also commit a disproportionate number of felonies, as victim surveys show. In any case, a felon either deserves his punishment or not, whatever his race. If he does, it may also be that he deserves disenfranchisement. His race, in both cases, is irrelevant."