Felony Disenfranchisement: Jim Crow Lives On

People who commit crimes deserve punishment, but after submitting to punishment shouldn’t they be encouraged to return to being full members of society? However, many states place severe restrictions on felons and as a result the number of disenfranchised citizens is growing and is affecting voting patterns and election results. What might be the justification for depriving ex-felons of the right to vote? Jamelle Bouie addresses these issues in an important article in The American Prospect: The Ex-Con Factor.

Bouie provides these data from 2010: 5.85 million US citizens (1 in 40 adults) are currently disenfranchised; 2.2 million of those are black, including 1.4 million males.

The Constitution gives states the right to define restrictions on voting for those who have committed a crime. The result is an array of different approaches that vary from lenient to quite severe. Bouie describes a number of these state restrictions. Rather than delving into details, let’s focus on effects.

Florida has the largest population of the disenfranchised. Bouie provides these numbers from 2010: 10.4% of the voting population is disenfranchised, including 23.3% of the black voting population. Can anyone doubt that these numbers are large enough to affect results in such a narrowly divided state? Would George W. Bush have become president without these voting restrictions in place? Do Florida politicians look on these numbers with dismay—or with smug satisfaction?

Bouie provides this insight:

"Disenfranchised felons are concentrated largely in the South. Which means that if you’re a voting-age American who’s forbidden to vote, odds are good that you’re living in the former Confederacy. You’re probably black, probably a man, and likely went to prison for a nonviolent offense like drug possession or theft. Racism didn’t put you in jail, necessarily, but the legacy of discrimination put you in the class of people who are more likely to be arrested, more likely to be convicted, more likely to be sentenced—and more likely to have basic rights of citizenship taken away."

The disproportionate effect on black voters was part of a plan initiated after the end of Reconstruction.

"Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war. The whole point of these laws was the mass exclusion of black men from mainstream civic life. It still is."

"They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft. ‘Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,’ Holloway explains, ‘and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes’."

If one should remain dubious of the intent of these laws, Bouie provides this relevant quote:

"Lawmakers made no secret of their motivations. During the Virginia Constitutional Convention of 1901, Delegate Carter Glass—who would later become Senator Glass, co-sponsor of the Glass-Steagall Act—praised felon disenfranchisement as a plan to ‘eliminate the darkey as a political factor in this state in less than five years’."

Bouie refers to the current versions of these laws as "this last vestige of Jim Crow." But what if there is more of Jim Crow still around and about traveling under different guises? That is what Michelle Alexander believes. She makes her argument in The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Consider this quote from her book:

"....the seeds of the new system of control—mass incarceration—were planted during the civil rights movement itself, when it became clear that the old caste system was crumbling and a new one would have to take its place."

Under traditional Jim Crow it was simple to charge southern blacks with some sort of crime if one wished to, but under a New Jim Crow one must be more circumspect.

"A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of backs back in their place. Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever’."

The machinery for converting blacks into second-class citizens was to be the War on Drugs.

"More than 2 million people found themselves behind bars at the turn of the twenty-first century, and millions more were relegated to the margins of mainstream society, banished to a political and social space not unlike Jim Crow, where discrimination in employment, housing, and access to education was perfectly legal, and where they could be denied the right to vote....The New Jim Crow was born."

Alexander points out felons have more rights taken away than just the right to vote.

"It is not necessary to serve time in prison in order to be labeled forever a ‘felon,’ it is the conviction that counts. Many who plead guilty to a felony charge of marijuana possession are unaware of what that admission will cost them. This quote from the American Bar Association describes the fate awaiting these individuals."

‘[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally funded health and welfare benefits, food stamps, public housing, and federal education assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses....He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote....’

Alexander implies that there was an active, plotting intelligence that created the War on Drugs, produced legislation that imposed incredibly harsh penalties on even recreational drug users, that encouraged—financially—local law enforcement agencies to arrest and incarcerate as many people as possible, that had the Supreme Court provide the permission to preferentially arrest blacks, and then passed laws and instituted policies that would guarantee second-class status for life for anyone caught up in this system.

At the time I first read Alexander’s book I agreed that the net effect of what had transpired was as she described, but I had trouble with the concept of assigning a hidden, guiding hand to its implementation. However, the more I have learned about the manufactured hysteria connecting drugs and crime, drug legislation, voting right restrictions, the Supreme Court, and our criminal system, the more I have begun to wonder if I was not the one who was wrong.

I continue to wonder. We all should be wondering.