Felony disenfranchisement is not allowing people to vote (known as disenfranchisement) due to their having been convicted of a criminal offence. The right to vote may be temporarily or permanently rescinded. For the affected individual, there are "collateral consequences" including loss of access to jobs, housing, and other facilities. The community to which the felon returns may be unaware of the collateral consequences to the community, including lower percentages of community members who participate in the political process through voting. Opponents have argued that it restricts and conflicts with principles of universal suffrage.
- 1 History
- 2 Support
- 3 Criticism
- 4 By country
- 4.1 United States
- 4.2 Europe
- 4.3 Other countries
- 5 See also
- 6 References
- 7 External links
The roots of felony disenfranchisement can be traced back to ancient Greek and Roman traditions: disenfranchisement was commonly imposed on those convicted of "infamous" crimes as part of their "civil death", whereby these persons would lose all rights and claim to property. Most medieval common law jurisdictions developed some form of exclusion from the democratic process, ranging from execution on sight to rejection from community processes.
US conservative think tank The Heritage Foundation maintains that felonies are, by definition, serious crimes, and that persons who commit felonies have 'broken' the social contract and have thereby given up their right to participate in a civil society unless the ex-offender can prove over time that they are "participating in the social compact that governs our country and comply with the rules of a civil society". The Heritage Foundation notes that recidivism is common. Proponents of the disenfrancisment of felons argue that due to the high number of ex-offenders in some communities, the ex-offenders "could have a perverse effect on the ability of law abiding citizens to reduce the deadly and debilitating crime in their communities".
The presence of disenfranchised community members may affect social norms related voting. "The process of political socialization has the potential to encourage or discourage political participation among eligible voters...the potential for non-felons living in states with criminal policy regimes that exclude ex-felons from voting to be socialized against political participation, and thus be less likely to participate themselves is suggested". Research in the USA shows that the affect of felon disenfranchisement is greater in black communities than in non-Hispanic white communities. The likelihood of a non-felon, non-Hispanic white person voting is not affected by having felons in the community.
Felony disenfranchisement has the potential to affect the outcomes of election. "An analysis of recent election data revealed that at least seven senatorial elections and one presidential election would have been decided differently if convicted felons had retained suffrage". Some[who?] also contend that it can be classified as punishment, and cruel and unusual, making it inappropriate in some jurisdictions such as the United States, where it would be a violation of the Eighth Amendment to sentence someone to a lifelong prohibition from voting based on a single felony conviction. If considered as a punishment it is being applied after completion of the penalty or prison sentence imposed as punishment for the crime.
It has also been argued that felony disenfranchisement in some US states, especially Florida in the 2000 Presidential election, de facto amounts to racism. Research by sociologists Jeff Manza and Chris Uggen shows the impact of disenfranchisement on the outcome of elections. Their research also suggests that persons involved in the criminal justice system who vote may have lower rates of recidivism.
In 2008 over 5.3 million people in the United States were denied the right to vote because of felony disenfranchisement. Approximately thirteen percent of the United States' population is African American, yet African Americans make up thirty-eight percent of the prison population. Slightly more than fifteen percent of the United States population is Hispanic, while twenty percent of the prison population is Hispanic. People who are felons are disproportionately people of color. Felon disenfranchisement laws disproportionately affect communities of color as "they are disproportionately arrested, convicted, and subsequently denied the right to vote". Research has shown that as much as 10 percent of the population in some minority communities in the USA is unable to vote, as a result of felon disfranchisement.
Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Rick Santorum argued for the restoration of voting rights for ex-offenders. Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for offenders while incarcerated rather than Santorum's stated position of restoring voting rights only after the completion of sentence, probation and parole. President Barack Obama supports voting rights for ex-offenders.
As of 2011 only Kentucky and Virginia continued to impose a lifelong denial of the right to vote to all citizens with a felony record, absent some extraordinary intervention by the Governor or state legislature. However, in Kentucky, a felon's rights can be restored after the completion of a restoration process to regain civil rights. In 2007 Florida moved to restore voting rights to convicted felons. In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms, making Florida the state with the most punitive law in terms of disenfranchising citizens with past felony convictions. In July 2005, Democratic Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision. On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, every state prohibits felons from voting while in prison. Iowa Governor Terry Edward Branstad reversed Vilsack's executive order.
As of 2010, all the various state felony disenfranchisement laws added together block an estimated 5.9 million Americans from voting, up from 1.2 million in 1976.
Unlike most other laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez, the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except on the basis of "participation of rebellion, or other crime", will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another. However, many critics argue that Section 2 of the 14th Amendment merely allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court did rule, however, in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's felony disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.
Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:
Maine and Vermont are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballot and after terms of conviction end.
Ends after release
In thirteen states and the District of Columbia, disenfranchisement ends after incarceration is complete.
- District of Columbia
- New Hampshire
- North Dakota
- Rhode Island
Ends after parole
Ends after probation
- Arizona (for first time felony offenders)
- Nebraska (Two years after completion of above term)
- Nevada First time and non-violent offenders all others may, "petition a court of competent jurisdiction for an order granting the restoration of his or her civil rights"
- New Jersey
- New Mexico
- North Carolina
- South Carolina
- West Virginia* (If you have willfully failed to make three payments in a 12 month period on legal financial obiligations, the prosecutor can request the court to revoke your voting rights)
- Alabama All applicants are not eligible for voter rights restoration. To be eligible for voter rights to be restored, the applicant cannot have convictions listed below:
- Impeachment, Murder, Rape (any degree),
- Sodomy (any degree), Sexual Abuse (any degree),
- Incest, Sexual Torture,
- Enticing a Child to Enter a Vehicle for Immoral Purposes,
- Soliciting a Child by Computer,
- Production of Obscene Matter Involving a Minor,
- Production of Obscene Matter,
- Parents or Guardians Permitting Children to Engage in Obscene Matter,
- Possession of Obscene Matter,
- Possession with Intent to Distribute Child Pornography or
- those persons who were convicted of any felony of murder or manslaughter (except vehicular homicide)
- those persons who were convicted of any felony constituting an offense against public administration involving bribery or improper influence or abuse of office, or any like offense under the laws of any state or local jurisdictionof the United States, or of the District of Columbia; or
- those persons who were convicted of any felony constituting a sexual offense, or any like offense under the laws of any state or local jurisdiction or of the United States or of the District of Columbia.
- Mississippi – Suffrage can be restored if "The legislature may, by a two-thirds vote of both houses, of all members elected, restore the right of suffrage to any person disqualified by reason of crime; but the reasons therefor shall be spread upon the journals, and the vote shall be by yeas and nays."
- obtaining money or goods under false pretense,
- Tennessee – Disenfranchisement ends after terms of incarceration, completion of parole, and completion of probation. In addition, the person must pay "Any court order restitution paid; current in the payment of any child support obligations; and/or Any court ordered court costs paid". The ex-offender must then either obtain a court order restoring their right to vote or complete the certificate of restoration of voting rights.
- Wyoming – Disenfranchisement ends if the crime committed was nonviolent; the person has only been convicted of one felony;it has been five years after completion of terms of incarceration, completion of parole and completion of probation; and the person submits an application in writing to the state board of parole. However, it is up to the discretion of the parole board is rights are reinstated.
Individual petitions required
- Florida – Voting rights are restored by the Florida Board of Executive Clemency. Less serious crimes do not require a
hearing with the clemency board. In those cases, disfranchisement ends after it has been five years after completion of terms of incarceration, completion of parole and completion of probation. An application must be submitted to the court. For those with serious crimes, after seven years, the Florida Executive Clemency Board will decide whether or not to restore voting rights after receiving an application from the ex-offender.
- Virginia – Disenfrancisment ends if the ex-offender is:
- "free from any sentence served or supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense
- has paid all court costs, fines, penalties and restitution and have no felony or misdemeanor charges pending; not have had a DWI in the five years immediately preceding the application
- Not have any misdemeanor convictions and/or pending criminal charges 2 years preceding the application for non-violent felonies or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense"
The governor can approve or deny the application for restoration of voting rights.
Felony conviction thresholds affected by inflation
Various property crimes can have absolute dollar amount thresholds. For example, in Massachusetts under penalties specified in MGL Chap. 266: Sec. 127, a prosecution for malicious destruction of property can result in a felony conviction if the dollar amount of damage exceeds $250.
The United Kingdom
In the United Kingdom, prohibitions from voting are codified in section 3 and 3A of the Representation of the People Act 1983. Excluded are incarcerated criminals (including those sentenced by courts-martial, those unlawfully at large from such sentences, and those committed to psychiatric institutions as a result of legal process). Civil prisoners sentenced (for non-payment of fines, or contempt of court, for example), and those on remand unsentenced retain the right to vote.
The UK is subject to Europe-wide rules due to various treaties and agreements associated with their membership of the European Community. The Act does not apply to elections to the European Parliament. Following Hirst v United Kingdom (No 2) (2006), in which the European Court of Human Rights (ECHR) ruled such a ban to be disproportionate, the policy was reviewed by the UK government. In 2005 the Secretary of State for Constitutional Affairs, Lord Falconer of Thoroton, stated that it may result in some prisoners being able to vote, and the review was still under way in 2010 following an "unprecedented warning" from the Council of Europe. The UK government position was then that
"It remains the government's view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. The issue of voting rights for prisoners is one that the government takes very seriously and that remains under careful consideration."
Parliament voted in favour of maintaining disenfranchisement of prisoners in 2011 in response to Government plans to introduce legislation. Since then the Government has repeatedly stated that prisoners will not be given the right to vote in spite of the ECHR ruling.
In response to the ECHR ruling, Lord Chancellor and Secretary of State for Justice Chris Grayling produced a draft Voting Eligibility (Prisoners) Bill for discussion by a Joint Committee., incorporating two clear options for reform and one which would retain the blanket ban.
For elections in the Republic of Ireland, there is no disenfranchisement based on criminal conviction, and prisoners remain on the electoral register at their pre-imprisonment address. Prior to 2006, the grounds for postal voting did not include imprisonment, and hence those in prison on election day were in practice unable to vote, although those on temporary release could do so. In 2000 the High Court ruled that this breached the Constitution, and the government drafted a bill extending postal voting to prisoners on remand or serving sentences of less than six months. However, in 2001, the Supreme Court overturned the High Court ruling and the bill was withdrawn. After the 2005 ECHR ruling in the Hirst case, the Electoral (Amendment) Act 2006 was passed to allow postal voting by all prisoners.
Other European countries
Several European countries, including France, Germany (reinstated after for two to five years) and the Netherlands, permit disenfranchisment by special court order, such as in the case of Muhammad Bouyeri.
In Germany the law even calls on prisons to encourage prisoners to vote. Only those convicted of electoral fraud and crimes undermining the "democratic order", such as treason are barred from voting, while in prison.
Most democracies give convicted criminals the same voting rights as other citizens. In New Zealand, only persons convicted of electoral fraud or corruption lose their vote, for up to several years after release from prison.
In both China and Taiwan, the abrogation of political rights is a form of punishment used in sentencing, available only for some crimes or along with a sentence of death or imprisonment for life. Rights that are suspended in such a sentence include the right to vote and to take public office, as well as the rights to political expression, assembly, association, and protest.
Many countries allow inmates to vote. Examples include Australia, Canada, the Czech Republic, Denmark, Finland, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden, and Zimbabwe. In Australia, where voting is compulsory, the High Court of Australia in 2007 found that the Constitution enshrined a limited right to vote, which meant that citizens serving relatively short prison sentences[clarification needed] cannot be barred from voting.
On 8 December 2008, Leung Kwok Hung (Long Hair), member of Hong Kong's popularly-elected Legislative Council (LegCo), and two prison inmates, successfully challenged disfranchisement provisions in the LegCo electoral laws. The court found blanket disfranchisement of prisoners to be in violation of Article 26 of the Basic Law and Article 21 of the Bill of Rights and the denial to persons in custody of access to polling stations as against the law. The government introduced a bill to repeal the provisions of the law disfranchising persons convicted of crimes (even those against the electoral system) as well as similar ones found in other electoral laws, and it made arrangements for polling stations to be set up at detention centres and prisons. LegCo passed the bill, and it took effect from 31 October 2009, even though no major elections were held until the middle of 2011.
- Hirst v. the United Kingdom (No. 2)
- Universal suffrage
- Loss of rights due to felony conviction
- Transgender disenfranchisement in the United States
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