Does the Boston Bomber Spoil the Lot? The Racial Bias of Felony Disenfranchisement
On Monday night’s round of CNN Town Halls featuring Democratic presidential candidates Amy Klobuchar, Elizabeth Warren, Bernie Sanders, Kamala Harris, and Pete Buttigieg, viewers heard answers to (and careful evasions of) questions of chief concern from each prospective nominee. One issue of seemingly-vital importance? Felony disenfranchisement.
Candidates Warren, Sanders, Harris, and Buttigieg fielded questions about whether felons and inmates should be granted voter eligibility, and while many are engaging with this subject seemingly for the first time, this debate has a long history. As recently as 2014, former Attorney General Eric Holder urged states to lift lifetime bans on voting, claiming them to be vestiges of Black Codes, or policies of black disenfranchisement that came about immediately following the Civil War.
The debate around voter disenfranchisement, which affects more than 6 million individuals with felony convictions (roughly 2.5% of the voting-age population), has become a subject of renewed interest. Proponents of intersectional social justice argue that policies like literacy tests in the past and voter ID laws in the past and present have been shown to disproportionately impact communities of color, and given that black people suffer harsher treatment in the criminal justice system due to unequal enforcement and prosecutorial practices, that felony disenfranchisement represents yet another hurdle in a broader struggle to extend inalienable civil rights to all members of society. In a recent 2016 decision, the 4th U.S. Court of Appeals struck down North Carolina’s policy requiring certain IDs to vote on the basis that legislators requested data on voting patterns broken down by race and leveraged it to, in the court’s words, “target African-Americans with almost surgical precision.” This transparent display of subversion demonstrated that the intent appeared not to be the championing of democracy but rather the exclusion of certain races from participating in it. Still, voter ID laws are championed by the right in numerous southern states like Georgia, Kansas, Mississippi, Tennessee, and, to give a recently-controversial example, Texas.
Proponents of these laws often levy the accusation that opponents to voter ID laws are motivated by racist intent and a “bigotry of low expectations,” or a paternalistic belief that certain groups face more difficulty obtaining required IDs because they lack the cognitive capacity to do so. In reality, the argument against voter ID laws should be understood through the lens of economic disenfranchisement, as certain ethnic minorities and age groups disproportionately lack access to institutions that grant required IDs and the economic burden to obtain them is prohibitive. This, coupled with the lack of evidence for claims of widespread voter fraud, suggest that mandating strict ID requirements to vote does more to erode democracy than to preserve it.
But how does the conversation around felony disenfranchisement fit in with the broader history of racial discrimination in our electoral process? Because blacks make up a vastly disproportionate share of the incarcerated population, and are therefore more impacted to the stripping away of their civil right to vote, it may seem to some that this issue is born of the same tradition. Nevertheless, the rhetorical waters have been diluted and we instead focus on corner cases.
Since the town halls, we’ve been bombarded with an argument over whether the Boston Bomber should be allowed to vote. While it’s convenient for an opponent of felony disenfranchisement to reject this line of questioning by arguing that legislation can be as atomized as we’d like it to be, if we wish to understand why this is the chief objection and grapple with the underlying moral questions, we must first examine the surface incentives on either side.
Christopher Uggen and Jeff Manza have attempted to study these incentives and have made important contributions to academic engagement with the issue of felony disenfranchisement, in their 2002 paper concluding that not only is there “evidence that lawmakers fully appreciated the partisan consequences of their actions,” (referring to mid-19th century disenfranchisement laws) but also that there is “considerable evidence that ballot restrictions for felons and ex-felons have had a demonstrable impact on national elections, and in this sense rising levels of disenfranchisement constitute a reversal of the universalization of the right to vote.” While it is difficult to assess with real rigor how the restoration of voting rights to the disaffected would impact electoral outcomes, it’s generally believed or assumed that most who regained rights would break for the Democratic Party. To zero in on the significance of this assumption in the context of a debate around the principle of universal suffrage, let’s approach one example.
Florida, one of the most oft-cited examples of systemic failures in the criminal justice system, was, prior to a November 2018 decision, home to over 25% of those who were impacted by felony disenfranchisement, and according to the Florida Campaign for Criminal Justice Reform, in the same 44 years (1970–2014) that Florida saw population growth of roughly 193%, its prison population increased by about 1048% (for the United States as a whole, these figures are roughly 55% and 600%). Florida is just one example of many battleground swing states that restricted voting rights for certain criminal classes, and while it cannot be conclusively demonstrated that they’ve drastically impacted the outcome of elections (despite critics claiming the contentious 2000 presidential election may well have been swung had felony disenfranchisement not been a factor) there are clear incentives to either preserve or challenge this paradigm.
While the November 2018 bill restored voting rights to up to 1.5 million disenfranchised voters, like clockwork, Florida’s Republican-led legislature voted in 2019 to enact a policy requiring fine and fee repayment as a precursor to restoration of voting rights. Critics have lambasted this policy as a modern “poll tax,” a policy with roots in late-19th century attempts to disenfranchise black voters. Critics claim that ex-felons, often financially destitute and at risk for recidivism, are likely to be impacted widely by this change, and view the policy as a shifting of the goalposts in the debate around felony disenfranchisement that seeks to preserve the spirit of the old system as much as possible.
Why, though, is the rhetoric centered on only the most heinous offenders in our society? A close look at the data concludes that individuals convicted of sexual assault and homicide display some of the lowest risk of repeat offense, and that while state prisons are made up mostly of perpetrators of violent crime, this data is skewed by aggregation practices that lack nuance. While the Boston Bomber is a hyperbolic example meant to evoke an emotional response, it speaks to an underlying moral dichotomy in our justice system — retribution or restoration?
Retributive justice is an ideological framework for a society’s justice system that prescribes, as the name suggests, rigid punishments for offenders in the hopes that it serves as a public deterrent for future offenders and that repayment in the form of sufficient suffering equates to holding a criminal accountable. Restorative justice zooms out from the individual to examine the circumstances that brought about their decisions and attempts to address, holistically, the component causes at their roots. Rather than sentence a violent criminal to life in prison, a proponent of restorative justice might attempt rehabilitation and ensure proper early intervention and access to beneficial programs for their community in order to eradicate predictive factors of crime. While proponents of criminal justice reform broadly tend to advocate for systems of restorative justice, there still exists a significant pushback in favor of retributive or punitive measures that seem to defy the National Institute of Justice’s findings on deterrents of crime.
The conversation around felony disenfranchisement illuminates an important intersection of a myriad of issues. The underlying question of retributive and restorative justice has a long history steeped in racial bias, political expediency, and what researchers have long concluded — individuals with strong, conservative religious convictions are more likely to favor a retributive or punitive model of justice. These component causes have culminated in an incendiary debate where we erase the experiences, the data, and the evidence for restorative policies in order to moralize over extreme examples like terrorists and unrepentant serial killers, further muddying the waters on what should be done about the broader issue — addressing the structural and civil abandonment of by far the largest prison population in the world, disproportionately comprised of black and brown people.