Felony disenfranchisement is the term used to describe the practice of prohibiting people from voting (known as disenfranchisement) based on the fact that they have been convicted of a felony or other criminal offence. It therefore restricts and conflicts with principles of universal suffrage; the legitimacy of this is a matter of some controversy.
The roots of felony disenfranchisement laws can be traced back to ancient Rome and German traditions. Disenfranchisement was commonly imposed on individuals 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.
Today, only two states, Kentucky and Virginia, continue to impose a life-long 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 now 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 July, 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision. On Oct 31, 2005 Iowa's Supreme Court upheld mass re-enfranchisement of ex-convicts. Nine other states disenfranchise ex-felons for various lengths of time following the completion of their probation or parole. Except Maine and Vermont, every state prohibits felons from voting while in prison.
Upon the passage of the Fifteenth Amendment, giving non-whites the right to vote, Southern States began to use seemingly neutral voting qualifications - e.g. literacy tests, property requirements, grandfather clauses, tests for good moral character and criminal disenfranchisement - to deny the vote to black people but also undesirable (primarily poor) whites. While disenfranchisement laws had existed long before these practices began, a number of Southern States tailored these laws to maximize their impacts on African-Americans. One delegate to the Virginia convention of 1906 went on record at the time as saying: "This plan will eliminate the darkey as a political factor in this state in less than five years." 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 felon disenfranchisement statutes as constitutional in light of the equal protection clause; but 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 discriminate and it was enacted with discriminatory animus.
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 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 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 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."
Republic of Ireland
Template:Ambox/small Following the Hirst case, convicted prisoners had the right to vote in law but because the prison authorities did not facilitate the means to exercise this right it was unenforceable by the prisoners. In Hirst the ECHR ruled that Member States are required under Article 3 of the First Protocol to be proactive as opposed to merely refraining from facilitating the franchise to serving prisoners. To comply with the judgment the Irish Republic passed a statute allowing convicted prisoners to have postal votes.
Most democracies give ex-offenders the same voting rights as other citizens. In New Zealand only persons convicted of electoral fraud or corruption lose the vote for up to several years after release from prison. Several European countries, e.g. France and Germany, permit disenfranchisment on some occasion, but only by special court order.
In both the People's Republic of China and the Republic of China, 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 which are suspended in such a sentence include the right to vote, to take public office, as well as the rights to political expression, assembly, association and protest.
Many countries allow inmates to vote. Examples are Australia, Canada, the Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Serbia, Sweden and Zimbabwe. 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. In Australia, where compulsory voting is practised, 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 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 against Article 26 of the Basic Law and Article 21 of the Bill of Rights, and denying persons in custody access to polling stations against the law. The government introduced a bill to repeal the provisions disfranchising persons convicted of crimes (even those against the electoral system) as well as similar ones found in other electoral laws, and made arrangements for polling stations to be set up at detention centres and prisons. LegCo passed the bill, taking effect from 31 October 2009, even though no major elections will be held until mid 2011.
Proponents of felony disenfranchisement contend 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. Proponents may view disenfranchisement as simply being another form of punishment for the crime committed, or a deterrent to future crime. Some think debates about "felony disenfranchisement" should also include entry into juror pools and reinstated rights to own firearms, much less popular notions.
Opponents point to empirical evidence that the relatively small proportion of ex-felons who do participate in the political process by voting are less likely to return to crime. They note that felony disenfranchisement is often accompanied by other deprivations of civil rights, such as the ability to work in certain professions, which make it harder for former convicts to lead productive lives. Some also contend that it may be cruel and unusual punishment, in violation of the Eighth Amendment, to sentence someone to a lifelong prohibition from voting based on a single felony conviction. They point to instances of teenagers being convicted of relatively minor crimes which can still be classified as felonies, like trespassing on a construction site or stealing a stop sign, and argue that the law should not operate to deprive them of fundamental rights that they might not appreciate until many years later. Some contend that the right to vote is such a fundamental protection against potential government tyranny that should never be deprived, no matter the circumstances. It has also been argued that felony disenfranchisement in some 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.
Felony conviction thresholds affected by inflation
One aspect of this issue which bears upon the above arguments is the fact that various property crimes can have dollar amount thresholds, which, if exceeded, turn a misdemeanor into a felony. 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. Some people would argue that $250 is excessively low and since this dollar amount has not risen for many years, even damaging another's radio or cell phone could result in losing one's right to vote. If the dollar thresholds are not increased by law (or indexed to Inflation), a conviction for what is effectively very little money, could result in losing one's right to vote.
- Hirst v. the United Kingdom (No. 2)
- Universal suffrage
- Loss of rights due to felony conviction
- "LOSING THE VOTE: The Impact of Felony Disenfranchisement Laws in the United States" (pdf). Human Rights Watch and the Sentencing Project. October 1998. http://www.sentencingproject.org/doc/File/FVR/fd_losingthevote.pdf.
- "pages-schall.blj.doc - Powered by Google Docs". docs.google.com. http://docs.google.com/viewer?a=v&q=cache:SD7ENGyN880J:www.law.harvard.edu/students/orgs/blj/vol22/schall.pdf+outlaw+disenfranchisement+%22Common+law%22&hl=en&gl=uk&pid=bl&srcid=ADGEESjJdO_DXgNoXkcJziprI9H-b-eT42z0X7yLBNj7fL0K0SNPWga7LJIlhUxWwPf70hGNvTrw-fEIe4WMtejMQ9QQRuYwNcCEiymPCFDORTlwvBTWA5kLpkzO1XbMd9r3C8cVC1C_&sig=AHIEtbQKlBaTEY9Xhgamb9QfsMXJG9bAIw. Retrieved 2010-10-31.
- "Felony Disenfranchisement Laws in the United States" (pdf). The Sentencing Project. September 2008. http://www.sentencingproject.org/doc/publications/fd_bs_fdlawsinusMarch2010.pdf.
- Welch, Matt (July 25, 2003). "Felonious bunk: Why ex-cons should be given the vote". Reason. http://www.reason.com/news/show/33689.html.
- "Representation of the People Act 1983 (c. 2) - Statute Law Database". www.statutelaw.gov.uk. http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=2353486. Retrieved 2010-10-31.
- although not specifically felons; the distinction between felony and misdemeanour was abolished by the Criminal Law Act 1967
- 42 EHHR 41
- "Convicts 'will not all get vote'". BBC News. October 6, 2005. http://news.bbc.co.uk/1/hi/uk/4315348.stm. Retrieved December 9, 2005.
- "Prisoners must be allowed to vote, Council of Europe warns Britain". guardian.co.uk. http://www.guardian.co.uk/world/2010/mar/09/prisoners-vote-general-election-europe. Retrieved 2010-10-30.
- "Losing the Vote," p. 17.
- Street, Paul (December 16, 2003). "Racist Felony Disenfranchisement". ZMag. http://www.zmag.org/content/showarticle.cfm?ItemID=4695.
- Palast, Greg (2004). The Best Democracy Money Can Buy. Plume. ISBN 0452285674.
- Manza, Jeff; Uggen, Chris (2006). Locked Out: Felon Disenfranchisement and American Democracy. Oxford. ISBN 0195149327.
- Gabriel J. Chin (2007) Felon Disenfranchisement and Democracy in the Late Jim Crow Era, reviewing Manza & Uggen, 2006, Arizona Legal Studies Discussion Paper No. 31-07.
- M.G.L. - Chapter 266, Section 127
- "Commonwealth v. Beale 434 Mass 1024 (2001)". FindLaw. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ma&vol=sjcslip/8432&invol=1.
- The Sentencing Project page on Felony Disenfranchisement
- Gabriel J. Chin, Reconstruction, Felon Disenfranchisement and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth?, 92 Georgetown Law Journal 259 (2004)
- Wood, Erika (2008). "Restoring the Right to Vote" (pdf). The Brennan Center for Justice at NYU. http://brennan.3cdn.net/8782cc82daf02b9431_29m6ibzbu.pdf.