arrowSection 1.2 - Felon Disenfranchisement

This topic is monitored by Moritz Law Professor Douglas A. Berman

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Annotated Bibliography

Birdsong, Leonard E. "Drug Decriminalization and Felony Disenfranchisement: The New Civil Rights Causes." Barry Law Review 2 (2001): 73-85.

Birdsong posits that the drug war does more harm than good resulting in the incarceration of a disproportionate number of African-American men who are then disenfranchised. He suggests this is a civil rights issue and supports federal legislation that would eradicate disenfranchisement.

Demleitner, Nora V. "Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative." Minnesota Law Review 84 (2000): 753-804.

Demleitner suggests that to counter the potentially all-encompassing effect of felon disenfranchisement the model that Germany currently uses be employed. In that system, felon disenfranchisement is limited to specifically enumerated crimes, must be specified at the time of sentencing and can be imposed only for a limited amount of time. This system allows for the eventual reintegration of former criminals into civic life while at the same time addressing the immediate concerns of purity of the ballot box.

Dugree-Pearson, Tanya. "Disenfranchisement: A Race Neutral Punishment for Felony Offenders or a Way to Diminish the Minority Vote?" Hamline Journal of Public Law & Policy 23 (2002): 359-402.

Dugree-Pearson argues that disenfranchisement laws are not, as they were originally intended, effective means of punishment but rather arbitrary penalties that fall disproportionately on minorities. This disenfranchisement distorts the electoral process installing many Republicans by slim electoral margins. On top of these practical considerations, Dugree-Pearson argues that felon disenfranchisement is an unconstitutional violation of the 14 th and 15 th Amendments.

Ewald, Alec C. "Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United States." Wisconsin Law Review 2002 (2002): 1045-1138.

Ewald characterizes current disenfranchisement of felons as a confluence of past ideas of contractarian libreral, civic-virtue republican and racially discriminatory ideologies. Current understandings of the goals of the first two of these three ideologies would seem to suggest that they no longer support such disenfranchisement; in fact, liberal and republican theory offer powerful critiques of the continuation of such policies.

Fletcher, George P. "Disenfranchisement as Punishment: Reflection on the Racial Uses of Infamia." UCLA Law Review 46 (1999): 1895-1907.

Fletcher claims that disenfranchisement does not allow for the reintegration of felons into society and in that way creates a permanent caste system populated by former criminals. This system of permanent untouchables does not square with the criminal justice system's theoretical justifications for punishment and instead represents a lazy withdrawal from debate in the hope that a proper mix of purposes will come about.

Furman, Jesse. "Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian Justice." Yale Law Journal 106 (1997): 1197-1231.

Furman attempts to unravel what he sees as the illogic of felon disenfranchisement of the judiciary's rhetoric about the importance of the citizenship on the one hand and its tolerance of disenfranchisement on the other. To understand this paradox he attempts to get at the heart of the political theory on which our understandings are based. By examining the philosophy of John Rawls, who he deems the most important modern liberal thinker, Furman shows that the heart of liberalism itself falls victim to the same paradox of toleration and exclusion.

Harvey, Alice E. "Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look." University of Pennsylvania Law Review 142 (1994): 1145-1189.

Harvey argues that the African-American vote is unfairly limited by felon disenfranchisement in violation of the Voting Rights Act. African-Americans are targeted by the criminal justice system disproportionately and, as a result, are disenfranchised to a greater degree. Harvey then attempts to refute a number of theories forwarded in favor of disenfranchisement while demonstrating how the VRA prohibits the practice.

Hench, Virginia E. "The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters." Case Western Reserve University Law Review 48 (1998): 727-798.

Hench posits that felon disenfranchisement is part and parcel of a larger tradition of African-American exclusion at the polling place. Since the Civil War the effort to get minority rights at the ballot box has seen a few peaks and numerous valleys as there has been a systematic and institutional effort to keep blacks from voting either through legislative or judicial efforts. Felon disenfranchisement is simply one more recent incarnation of this effort.

Johnson-Parris, Afi S. "Felon Disenfranchisement: The Unconscionable Social Contract Breached." Virginia Law Review 89 (2003): 109-138.

Johnson-Parris argues that when a felon is paroled he enters into a social contract not unlike the one he broke by committing the original crime, but this second social contract is noticeably different than the first: the felon is not an equal party free to contract. Since the felon is disenfranchised he is a silent party to the social contract and the contract, therefore, is unconscionable. Johnson-Parris's point is that social contract theory is not an appropriate justification for felon disenfranchisement since that very disenfranchisement takes the felon outside the realm of traditional contract theory.

Lippke, Richard L. "The Disenfranchisement of Felons." Law and Philosophy 20 (2001): 553-580.

In a heavily philosophical and policy-based argument, Lippke addresses the societal justifications for continued felon disenfranchisement. Though Lippke concedes that some limited disenfranchisement might be justifiable, the blanket disenfranchisement of felons is not just in a society that encourages - and depends on - participation of its citizens. Further, the justification for disenfranchisements that are currently used are untenable in a society that is not otherwise wholly just and democratic.

McLeod, Aman, Ismail K. White and Amelia R. Gavin. "The Locked Ballot Box: The Impact of State Criminal Disenfranchisement Law on African American Voting Behavior and Implications for Reform." Virginia Journal of Social Policy & the Law 11 (2003): 66-88.

McLeod, White and Gavin claim that voter disenfranchisement amongst a large proportion of a particular demographic - in this case, the African-American community - has a negative effect on the larger community in which that demographic exists. They claim that political participation is influenced by social interaction and that by disenfranchising a small segment of that population, voter turnout in the community as a whole follows suit.

Miles, Thomas J. "Felon Disenfranchisement and Voter Turnout." Journal of Legal Studies 33 (2004): 85-129.

Miles concludes that voter disenfranchisement has no discernible effect on state-level rates of voter turnout. The young, male, African-American demographic that is disproportionately represented in the criminal justice system also has extremely low voter turnout, regardless of disenfranchisement. That is, in states where there is disenfranchisement of felons, the voter turnout amongst this young, African-American group is no worse than in states without disenfranchisement. This could be for two reasons. One, participants in crime tend to be poor and uneducated and people fitting this profile also vote less than average. Second, there tends to be a laxity of enforcement of voter disenfranchisement; there is often no practical way of enforcing the procedures so felons who want to vote, in practical terms, can.

Mondesire, J. Whyatt. "Felon Disenfranchisement: The Modern Day Poll Tax." Temple Political and Civil Rights Law Review 10 (2001): 435-441.

Mondesire suggests that felon disenfranchisement is similar in scope and outcome to earlier efforts to discourage the African-American vote. He claims that the modern 'prison-industrial complex' takes economic advantage of African-Americans in a way similar to what was done to sharecroppers in the American south after the civil war and that felon disenfranchisement perpetuates this cycle with a more legitimate veneer.

Pinaire, Brian, Milton Heumann and Lara Bilotta. "Barred From the Vote: Public Attitudes Toward Urban Challenges." Fordham Urban Law Journal 30 (2003): 1519-1550.

Pinare, Heumann and Bilotta find that more than 80% of Americans are in favor of allowing felons to vote again at some point after their prison or probation has been served. African-Americans and Hispanics particularly feel that felons should be re-enfranchised. But this result is complicated by the fact that most Americans feel some disenfranchisement at some point of the criminal justice process from sentencing to prison to probation, should take place. In all, public opinion is consistent with the laws of 35 states that restrict the right to vote during incarceration and/or probation and against those two states that do not disenfranchise ever and those thirteen that permanently disenfranchise.

Portugal, Carlos M. "Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon Disenfranchisement in Florida." University of Miami Law Review 57 (2003): 1317-1338.

With narrow margins of victory increasingly the norm - most notably in Florida - disenfranchisement of particular voters is particularly harmful, argues Portugal. Felon disenfranchisement depletes minority communities of a voice in a way that echoes the intentional discrimination of the past. The idea that a specific segment of the population is disenfranchised is an anachronism that we as a society should have evolved out of the way our understanding of other parts of the Constitution has evolved.

Price, Martine J. "Addressing Ex-Felon Disenfranchisement: Legislation vs. Litigation." Journal of Law and Policy 11 (2002): 369-408.

Price details the approaches in both litigation and legislation to defeat felon disenfranchisement. Examples of approaches in arenas at both the state and federal level are shown and the strength and weakness of each approach is evaluated. Price concludes that state legislation has the most chance for defeating felon disenfranchisement.

Steinacker, Andrea. "The Prisoner's Campaign: Felony Disenfranchisement Laws and the Right to Hold Public Office." Brigham Young University Law Review 2003 (2003): 801-828.

Steinacker deals with the issue of voter disenfranchisement as it informs the conversation about office holder disenfranchisement. Spurred mainly by the situation in which former Ohio Representative James Traficant, a convicted felon, sought to regain his position from jail (but was defeated), this article hypothesizes that though Traficant would have been permitted to be elected to the position he would not have been allowed to vote for himself in most states. Though there is no direct law or jurisprudence on the subject, Steinacker looks to related, office-holder Supreme Court case law to determine that the people have the right to vote into office a convicted felon.

Thompson, Mark E. "Don't Do the Crime if You Ever Intend to Vote Again: Challenging the Disenfranchisement of Ex-Felons as Cruel and Unusual Punishment." Seton Hall Law Review 33 (2002): 167-205.

Thompson argues that disenfranchisement of felons is a further punishment beyond that specifically assigned to any particular crime. To get to this point he claims that far from being a regulation designed to insure the purity of the ballot box, the non-punishment reasons given for disenfranchisement are merely a disguise. Thompson decides that disenfranchisement is cruel and unusual as it robs the felon of dignity, fails to punish similar crimes similarly and does not serve a legitimate state interest.

Shapiro, Andrew L. "Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy." Yale Law Journal 103 (1993): 537-566.

Shapiro argues that felon disenfranchisement was purposely enacted by some states as an heir to poll taxes and literacy tests designed to quash minority votes. Since legislation is unlikely to pass in a political climate hostile to felons, Shapiro recommends a new strategy for litigation that gets to the legality of the question from a different angle: the discriminatory impact of disenfranchisement runs afoul of section 2 of the Voting Rights Act. Since other justifications for disenfranchisement are thin, the disproportionality of impact argument should be successful with federal courts.

Simmons, Jill E. "Beggars Can't Be Voters: Why Washington's Felon Re-Enfranchisement Law Violates the Equal Protection Clause." Washington Law Review 78 (2003): 297-333.

Simmons posits that voter re-enfranchisement laws - like the one in Washington - that require felons to pay back their monetary debts as well as serving their prison time in order to gain back their right to vote is violative of the civil rights in the same way the Supreme Court found poll taxes to be discriminatory. This novel argument gets at both the practical problem of forcing ex-felons to pay back money they are ill equipped to pay back as well as the illegality of this requirement, claiming that Washington's law impermissibly distinguishes between felons and their right to vote based on economic circumstances.