'Civil Death' Used as Punishment for Crime in Ancient Athens, Ancient Rome, and Medieval Europe
"In Athens and other Greek city-states [approximately 1100 BC - 400 BC], the status of atimia [literally without honor, a form of disenfranchisement] was imposed upon criminal offenders. This status carried the loss of many citizenship rights, including the right to participate in the polis (polity). Of course, only elites had those rights to begin with, so disenfranchisement [losing the ability to vote] was a penalty imposed on deviant elites.
In ancient Rome, the related punishment of infamia [loss of public rights] could be imposed on criminal offenders. In this case, the principle penalties were loss of suffrage and the right to serve in the Roman legions (a desired opportunity)...
In medieval [a historical period ending in the 16th Century] Europe, the legal doctrines of 'civil death' and 'outlawry' carried forward similar notions. As with atimia, those punished with civil death generally suffered a complete loss of citizenship rights (in some early Germanic texts, outlaw status meant a 'loss of peace' that was comparable to becoming a wolf, since the outlaw had to 'live in the forest'). In extreme cases, civil death could be injurious or fatal, since outlaws could be killed by anyone with impunity, or have their property seized. In most medieval contexts, political rights held little substantive meaning. But the civil death model carried over into parts of modern criminal law."
Practice of 'Civil Death' Is Carried over to the British Colonies in America
"Criminal disenfranchisement has its roots in the punishment of 'civil death,' imposed for criminal offences under Greek, Roman, Germanic and later Anglo-Saxon law. English law developed the related punishment of attainder which resulted in forfeiture of all property, inability to inherit or devise property, and loss of all civil rights. These principles were transplanted to the British colonies [the first British settlement was established at Jamestown, Virginia in 1607] which later became Canada and the United States [in 1776]."
Debra Parkes, LLM "Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws," Temple Political and Civil Rights Law Review, Fall 2003
1764 - 1776
Public Debate Ensues in the British Colonies over Whether Voting Is a Right or a Privilege
"[A]side from property qualifications, there were no firm principles governing colonial voting rights, and suffrage [voting] laws accordingly were quite varied.... In practice, moreover, the enforcement of application of suffrage laws was uneven and dependent on local circumstances...
[T]he revolutionary period [roughly 1764-1776]... witnessed heated public exchanges and sharp political conflict over the [voting] franchise... Implicit in these arguments was the claim that voting was not a right but a privilege, one that the state could legitimately grant or curtail in its own interest...
Yet there was a problem with this vision of suffrage as a right... there was no way to argue that voting was a right or a natural right without opening a Pandora's box. If voting was a natural right, then everyone should possess it...
[S]everal important legal and jurisdictional issues also were shaped, or structured, during the revolutionary period. The first was that suffrage was defined as a constitutional issue... Implicit in this treatment was the notion that suffrage requirements ought to be durable and difficult to change."
US Constitution Forges a Link Between Voting in National Elections and State Suffrage Rules
"Under the Articles of Confederation [ratified in 1777], the states had retained complete control over the [voting] franchise. But the Constitution of the United States forged a link between state suffrage rules and the right to vote in national elections: those who participated in elections for the 'most numerous Branch of the state legislature'... there was no formal debate about the possibility of a national standard more inclusive than the laws already prevailing in the states. Indeed, the records of the federal convention and state constitutional conventions suggest that most members of the new nation's political leadership did not favor a more democratic franchise...
By making the franchise in national elections dependent on state suffrage laws, the authors of the Constitution compromised their substantive disagreements to solve a potentially explosive political problem... citizenship in the new nation - controlled by the federal government - was divorced from the right to vote."
Kentucky Constitution Is First among US States to Establish Criminal Disenfranchisement
Kentucky's state constitution is ratified. It states "Laws shall be made to exclude from... suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors."
Ohio's state constitution is ratified. It states "The legislature shall have full power to exclude from the privilege of voting... any person convicted of bribery, perjury, or otherwise infamous crime."
Louisiana's state constitution is ratified. It states "Laws shall be made to exclude from... suffrage those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors." It also specifically bars from voting those convicted of being "engaged in a duel with deadly weapons against a citizen of Louisiana."
Mississippi's state constitution is ratified. It states "Laws shall be made to exclude from... suffrage, those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors."
Connecticut's state constitution is ratified. It bars from voting "those convicted of bribery, forgery, perjury, dueling, fraudulent bankruptcy, theft, or other offense for which an infamous punishment is inflicted."
Alabama's state constitution is ratified. It states "Laws shall be made to exclude from... suffrage... those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors."
Missouri's state constitution is ratified. It states "The General Assembly shall have power to exclude... from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime." The constitution also specifically bars those convicted of electoral bribery for ten years.
Delaware's state constitution is ratified. It states "The legislature may impose the forfeiture of the right of suffrage as a punishment of crime." The constitution also specifically bars from voting those convicted of a felony.
Florida's state constitution is ratified. It states "Laws shall be made by the General Assembly to exclude from... suffrage those who shall have been, or may thereafter be, convicted of bribery, perjury, forgery, or other high crime or misdemeanor." It also states that "the General Assembly shall have power to exclude from... the right of suffrage, all persons convicted of bribery, perjury, or other infamous crimes." The constitution came into effect in 1845 when Florida became a U.S. state.
Rhode Island Constitution Establishes Criminal Disenfranchisement
Rhode Island's state constitution is ratified. It specifically bars from voting those "convicted of bribery or of any crime deemed infamous at common law, until expressly restored to the right of suffrage by an act of General Assembly."
New Jersey Constitution Establishes Criminal Disenfranchisement
New Jersey's state constitution is ratified. It specifically bars from voting those "convicted of felonies unless pardoned or restored by law to the right of suffrage." It also states "The legislature may pass laws to deprive persons of the right of suffrage who shall be convicted of bribery."
Texas' state constitution is ratified. It states "Laws shall be made to exclude... from the right of suffrage those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes."
New York Constitution Ratified to Bar Persons Convicted of "Infamous" Crimes from Voting
New York's new state constitution is ratified. It states "Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or of any other infamous crime.... and for wagering on elections."
Wisconsin's state constitution is ratified. It states "Laws may be passed excluding from the right of suffrage all persons... convicted of bribery, or larceny, or any infamous crime... and for betting on elections."
California Constitution Establishes Criminal Disenfranchisement
California's state constitution is ratified. It states "Laws shall be made to exclude from... the right of suffrage those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." The constitution also specifically bars from voting "those convicted of any infamous crime." The constitution came into effect with statehood in 1850.
Maryland's state constitution is ratified. It bars from voting persons "convicted of larceny or other infamous crime" unless pardoned by the executive; also persons convicted of bribery at elections are "forever disqualified from voting."
US Congress Passes the Edmunds Act, Banning Polygamists from Voting
"In 1882 Congress passed the Edmunds Act... It restated that polygamy was a felony punishable by five years of imprisonment and a $500 fine... Convicted polygamists were disenfranchised and were ineligible to hold political office."
New Alabama Constitution Expands Criminal Disenfranchisement in Effort to Maintain White Supremacy
"Between 1890 and 1910 many states adopted new laws or reconfigured preexisting laws to handicap newly enfranchised black citizens whose rights had been expanded by both the Fourteenth and Fifteenth Amendments...
The purpose of these various measures, as the President of Alabama's all-white 1901 constitutional convention explained, was 'within the limits imposed by the Federal Constitution to establish white supremacy.'"
The 1901 Constitution stated the following: "The following persons shall be disqualified both from registering, and from voting, namely:
All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector."
President Eisenhower Signs the Civil Rights Act of 1957
"Congress passes the Civil Rights Act of 1957, giving the U.S. Attorney General the authority to bring lawsuits on behalf of African Americans denied the right to vote.
The Civil Rights Act of 1957 is the first such measure to pass Congress since adoption of the federal civil rights laws of 1875. Among other things, the Act authorizes the U.S. Attorney General to sue to correct discrimination and intimidation of potential voters."
"President Johnson signed the [Voting Rights Act] into law on August 6, 1965. Section 2 of the Act, which closely followed the language of the 15th amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis.
Among its other provisions, the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest. Under Section 5, jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect. In addition, the Attorney General could designate a county covered by these special provisions for the appointment of a federal examiner to review the qualifications of persons who wanted to register to vote. Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county's polling place."
[Editor's Note: The Voting Rights Act was renewed in 1970 for five years, 1975 for seven years, 1982 for 25 years, and in 2006 for an additional 25 years.]
California Supreme Court in Otsuka v. Hite Defines the Term "Infamous Crimes"
The California Supreme Court rules in Otsuka v. Hite that the phrase "infamous crimes" in the state constitution should only disenfranchise those "deemed to constitute a threat to the integrity of the elective process."
New York Supreme Court Rules That Criminal Disenfranchisement Is Reasonable and Constitutional in Green v. Board of Elections
The New York Supreme Court rules in Green v. Board of Elections that criminal disenfranchisement statutes are constitutional, arguing that "a man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact... It 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..."
Federal Appeals Court Argues That "Constitutional Concepts" Should Evolve Along with Modern Concepts of Justice and Punishment
The Ninth Circuit Court of Appeals stated in Dillenburg v. Kramer that "courts have been hard pressed to define state interest served by laws disenfranchising persons convicted of crimes... Search for modern reasons to sustain the old governmental disenfranchisement prerogative has usually ended with a general pronouncement that a state has an interest in preventing persons who have been convicted of serious crimes from participation in the electoral process or a quasi-metaphysical invocation that the interest is preservation of the 'purity of the ballot box.'...
Earlier in our constitutional history, laws disenfranchising persons convicted of crime may have been immune from attack. But the constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber."
The ruling overturned a lower court decision denying the appellant, Byrle L. Dillenburg, a chance to have a three judge panel in US district court decide whether or not Washington's criminal disenfranchisement law was unconstitutional.
US Supreme Court Rules That Disenfranchising Convicted Felons Does Not Violate the Equal Protection Clause of the US Constitution
The US Supreme Court rules in Richardson v. Ramirez that "California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause...
Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions... recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision...
But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened one, presumably the people of the State of California will ultimately come around to the view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument."
California Amends Constitution to Allow Felons to Vote After Completion of Incarceration and Parole
"In November of 1974, California voters passed Proposition 10, which effectively restored voting rights to former felons. California thus joined a growing number of states that removed permanent voting restrictions for people convicted of felonies, ‘infamous’ crimes and a variety of lesser offenses. While this measure received little fanfare in the media, its impact was substantial due to California’s dramatic increase in incarceration rates beginning in the 1970s. Over the next 30 years, this change restored voting rights for hundreds of thousands of citizens who otherwise would have been disenfranchised."
The constitution restricts felons from voting "while... imprisoned or on parole for the conviction of a felony."
US Supreme Court Rules That Purposeful Racial Discrimination Must Be Evident for a Disenfranchisement Law to Be Unconstitutional
The US Supreme Court rules in City of Mobile, Alabama v. Bolden that only actions undertaken with "racially discriminatory motivation" were unconstitutional or illegal under the Voting Rights Act.
The Supreme Court ruling states that there must be "purposeful discrimination" for a voting disenfranchisement law to be found unconstitutional. Racial discrimination alone is irrelevant unless it can be shown that the intent was to racially discriminate.
This case set one of the benchmarks for future cases challenging felon disenfranchisement laws based upon racial intent.
Massachusetts Voters Ban Incarcerated Felons from Voting
"In 2000 [Nov. 4], Massachusetts became the only state in recent history to further restrict voting rights for felons. Prior to a ballot question [passed by 60.3% of voters] that year, there were no voting restrictions for felons in Massachusetts. This changed when the Massachusetts constitution was amended to include, ’Persons who are incarcerated in a correctional facility due to a felony conviction’ may not vote' (Mass Const. Art. III as amended in 2000)."
"In March 2001, the New Mexico legislature adopted Senate Bill 204, repealing the state’s lifetime ban on ex-felon voting. Prior to the bill’s passage, anyone convicted of a felony faced permanent disenfranchisement. According to the new law, persons convicted of a felony who have completed their prison terms, as well as any offenders completing probation or parole, are automatically eligible to register. There is no application process required to restore voting rights. It is estimated that over 50,000 New Mexicans were barred from voting at the time of the law’s enactment."
US Senate Votes Down Amendment Granting Felons The Right to Vote in Federal Elections
"[In] 2002 U.S. Senate vote on an amendment to the federal voting reform legislation [Equal protection of Voting Rights Act of 2001] that proposed to restore voting rights to ex-felons in federal elections. Senators from the 11 former confederate states voted 18 to 4 against enfranchisement (the measure went down by a 63-31 floor vote), and the most passionate speeches against it were made by southerners..."
Alabama Passes Bill Allowing Most Felons to Register to Vote
"In 2003, [Alabama] Governor Riley signed into law a bill [Section 15-22-36.1] that permits most people with felony convictions [in the state of Alabama] to apply for a certificate of eligibility to register to vote after completing their sentence."
Nevada Passes Bill to Automatically Restore the Vote to Felons
"In 2003, the Nevada legislature passed Assembly Bill 55. Highlights of the new law include:
• For people released from parole, prison, or probation before July 1, 2003, the law automatically restores voting rights and the right to serve as a juror in a civil case. These
individuals gain the right to run for public office after four years and can serve as a juror in a criminal case after six years. This applies to all former felons, regardless of the
number or seriousness of the convictions.
• For people released after July 1, 2003, the bill requires the immediate restoration of these rights only for individuals who have committed a single, nonviolent felony, including a drug offense. Those who have been convicted of a violent felony or who have served for multiple convictions must petition a court for the restoration of their rights.
• The bill also allows ex-felons to hold 26 different occupations from which they were previously banned."
Applied Research Center "Re-Enfranchising Ex-Felons Assembly Bill, 55, State of Nevada, 2003," www.arc.org (accessed Aug. 3, 2009)
Nebraska Repeals Lifetime Ban on Felon Voting
"In March 2005, the [Nebraska] Legislature repealed the lifetime ban on all felons and replaced it with a two-year post-sentence ban. Gov. Dave Heineman vetoed the bill but was overridden by the Legislature."
Rachel La Corte, MA "Ex-Felons Face Roadblocks in Regaining Voting Rights," Seattle Post Intelligencer, July 4, 2005
June 17, 2005
Iowa Restores Vote to All Felons Who Have Completed Their Sentences
"Gov. Tom Vilsack of Iowa announced yesterday [6/17/05] that he would restore voting rights for all felons who have completed their sentences, ending what advocates for voting rights had called one of the most restrictive disenfranchisement laws in the country."
"Iowa Governor Will Give Felons the Right to Vote," New York Times, June 18, 2005
July 7, 2006
Washington District Court Rules in Farrakhan v. Gregoire That State's Criminal Disenfranchisement Laws Do Not Violate Section 2 of the Voting Rights Act
"On July 7, the Eastern District Court of Washington dismissed the Farrakhan v. Gregoire case, in which the plaintiffs charged that Washington's felon disenfranchisement laws and restoration policies disproportionately result in the denial of voting rights for racial minorities and therefore violate Section 2 of the 1965 Voting Rights Act.
In its Decision, the Court concluded that it is 'compelled to find that there is discrimination in Washington's criminal justice system on account of race' and that this discrimination 'clearly hinders the ability of racial minorities to participate effectively in the political process.' Despite these conclusions, however, the Court dismissed the case citing a 'remarkable absence of any history of official discrimination' in Washington's electoral process and felon disenfranchisement provisions."
The Sentencing Project " Washington State: Court Dismisses Farrakhan Disenfranchisement Case Charging VRA Violation," www.sentencingproject.org, July 11, 2006
Apr. 5, 2007
Florida Gov. Charlie Crist Institutes Automatic Vote Restoration to Felons Who Have Completed Their Full Sentences
The Florida Rules of Executive Clemency were amended by Gov. Charlie Crist (R) and the Florida Board of Executive Clemency on Apr. 5, 2007. The new rules now permit disenfranchised felons to have their ability to vote automatically restored once they have completed their full sentences, including "imprisonment, parole, probation, community control, control release, and conditional release [and] has paid all restitution." Additional requirements are also mandated. Previous rules required at least five "crime-free" years before such restoration.
Maryland Institutes Automatic Vote Restoration for All Felons upon Completion of Sentence
"In 2007, the [Maryland] Legislature repealed all provisions of the state’s lifetime voting ban, including the three-year waiting period after completion of sentence for certain categories of offenses, and instituted an automatic restoration policy for all persons upon completion of sentence."
Washington Supreme Court Reinstates Fine Payment as Part of Felon Re-Enfranchisement Qualifications
On July 26, 2007, the Washington State Supreme Court, in Madison v. Washington, reversed an Apr. 21 2006 King County superior Court order giving "all felons who have satisfied the terms of their sentences except for paying legal financial obligations, and who, due to their financial status, are unable to pay their legal financial obligations immediately," the right to vote.
The Washington State Supreme Court ruled that persons convicted of a felony in the state of Washington who were convicted after July 1, 1984 have their ability to vote restored once all probation/parole is completed and all fines are paid.
Those convicted prior to July 1, 1984 must petition the sentencing review board to have their ability to vote restored.
Presidential candidate Barack Obama made a statement supporting the re-enfranchisement of felons in a Dec. 7, 2007 questionnaire for the National Association for the Advancement of Colored People (NAACP):
"I support restoration of voting rights for ex-offenders. I am a cosponsor of the Count Every Vote Act, and would sign that legislation into law as president."
9th US Circuit Court of Appeals Rules that Washington's Felon Disenfranchisement Law Violates the Voting Rights Act
A three judge panel of the 9th US Circuit Court of Appeals ruled 2-1 in Farrakhan v. Gregoire that Washington's felon disenfranchisement law violates Section 2 of the Voting Rights Act and that plaintiffs "demonstrated that the discriminatory impact of Washington’s felon disenfranchisement is attributable to racial discrimination." According to a press release from Washington Secretary of State Sam Reed, the ruling will allow "inmates currently behind bars to vote in Washington."
[Editors Note:In an interview with ProCon.org on Jan. 6, 2010, Sam Reed's office stated that they were expecting the Attorney General to appeal this decision (the office announced later that day that the case will be appealed to the US Supreme Court). The office also stated that until guidance is recieved from the Washington Attorney General's Office as to how this ruling should be implemented, the "status quo" remains in place; incarcerated felons will not be allowed to vote.]
Washington's Felon Disenfranchisement Law Upheld in en banc Reversal of 9th US Circuit Court Decision
On Oct. 7, 2010, the 9th Circuit Court of Appeals, in a full 11 judge bench hearing of Farrakhan v. Gregoire, reversed the court’s 2-1 panel decision from Jan. 5, 2010, and ruled 11-0 that
Washington’s felon disenfranchisement law did not violate the Voting Rights Act.
The court's majority opinion stated:
"Because plaintiffs presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained, we conclude that they didn’t meet their burden of showing a violation of the VRA. Accordingly, the district court didn’t err when it granted summary judgment against them."
US Supreme Court Declines Taking Up MA Felon Voting Case Simmons v. Galvin
On Oct. 18, 2010 the US Supreme Court published its denial of a Writ of Certiorari filed Feb. 1, 2010 in the case of Simmons v Galvin thus refusing to hear the case. The petitioners had claimed that a Massachusetts law banning felons from voting while incarcerated was racially discriminatory and in violation of the Voting Rights Act.