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Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United States

Published online by Cambridge University Press:  01 September 2004

Jeff Manza  and
Christopher Uggen
Jeff Manza
Affiliation:
Jeff Manza is associate professor of sociology and political science, and associate director of the Institute for Policy Research, at Northwestern University (manza@northwestern.edu)
Christopher Uggen
Affiliation:
Christopher Uggen is associate professor of sociology, Life Course Center affiliate, and McKnight Presidential Fellow at the University of Minnesota (uggen@atlas.socsci.umn.edu)
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Abstract

As levels of criminal punishment have risen in the United States, more and more citizens have been disenfranchised because of a felony conviction. This paper provides an overview and analysis of the unique practice of felon disenfranchisement in the United States today. We focus in particular on the political impact of disenfranchising large numbers of nonincarcerated felons—those who have served their entire sentences and those living in their home communities while completing a term of probation or parole. Our discussion is organized around three key issues relating to felon disenfranchisement: (1) the historical and legal origins of this practice; (2) its practical political impact on recent elections; and, (3) the racial dynamics that color both the history and contemporary effects of felon disenfranchisement in the United States. We discuss how felon disenfranchisement laws in many states appear to be out of step with both international practices and public opinion in the United States and consider contemporary policy proposals.Jeff Manza is the coauthor, with Clem Brooks, of Social Cleavages and Political Change: Voter Alignments and U.S. Party Coalitions. With Jeff Manza, Christopher Uggen is coauthor of the forthcoming Locked Out: Felon Disenfranchisement and American Democracy. Research was supported by grants from the National Science Foundation (No. 9819015) and from the Individual Project Fellowship Program of the Open Society Institute. The authors are indebted to the editors and anonymous reviewers for thoughtful comments and suggestions and to Angela Behrens and Sara Wakefield for research assistance.

Information

Type
SYMPOSIUM
Information
Perspectives on Politics , Volume 2 , Issue 3 , September 2004 , pp. 491 - 505
Copyright
© 2004 American Political Science Association

No discussion of the current state of democracy in the United States can ignore the unique and growing impact of the disenfranchisement of felons and ex-felons.1

Felony is a generic term used to distinguish more serious crimes from lesser crimes, known as misdemeanors. Statutes typically define felonies as those offenses punishable by one year or more of incarceration in a penitentiary. In practice, however, many states count minor as well as the most serious offenses as felonies.

A majority of states have laws that restrict the voting rights of not only felons in prison, but also those on probation and/or parole; some even disenfranchise ex-felons who have completed their sentences. The extraordinary growth of the country's felon population over the past three decades has heightened the effect of this sanction. For instance, the disenfranchised felon population at the time of the 2000 presidential election has been estimated to range from 4.1 to 4.7 million Americans,2 the latter representing about 2.3 percent of the voting age population. These restrictions are unique among democratic countries—the United States stands alone in denying voting rights to large numbers of nonincarcerated offenders.3 This phenomenon, as well as the growing controversy over these laws, raises fundamental questions about the character of American citizenship in relation to criminal offenders; the nature of democratic institutions and contemporary practice; and, because of the racially disparate impact of the laws, the importance of racial politics in the origins and contemporary practice of disenfranchisement.

The appropriate citizenship status of criminal offenders in the polity has long been the subject of political, philosophical, and legal debate, considered by philosophers as diverse as Aristotle, John Locke, Jean-Jacques Rousseau, Charles Louis de Secondat Montesquieu, Immanuel Kant, and John Stuart Mill. In spite of their differences, they all converge on the position that offenders are not entitled to full participation in political life.4

See Plannic 1987 and Pettus 2002 for overviews of classical philosophical debates.

In modern democratic polities, however, the view that criminal offenders cannot lose citizenship status in general has become nearly universal;5 in fact, the U.S. Supreme Court has affirmed this position in various contexts.6 Consistent with republican theories of citizenship, some defenders of disenfranchisement laws have argued that restoration or clemency procedures provide ex-offenders an avenue to prove they are worthy of political rights.7

See, for example, remarks of Sen. George Allen (R-VA) in Congressional Record 2002. For further discussion, see the outstanding contribution of Ewald 2002a, who distinguishes liberal, Republican, and race-based defenses of felon disenfranchisement.

Yet neither the courts nor Congress has deemed that “one man, one vote” rules must be extended to criminal offenders, even for those who have served their entire sentence.8

In addition to these long-standing political and philosophical questions about citizenship, disenfranchisement can also be viewed from the perspective of individual felons in their communities. The loss of voting rights is one of many “collateral consequences” of a felony conviction.9

Since the right to vote is an especially powerful symbol of inclusion, its denial may carry a particular sting to felons who must uphold other responsibilities of citizenship. Political theorists have widely asserted the importance of the right to vote as a certificate of social standing and as the basis for dignity and self-confidence.10

For example, Rawls 1971; Shklar 1991.

Some criminologists now suggest that the indiscriminate use of such sanctions may pose a barrier to offender reintegration, contributing to higher rates of recidivism.11

Felon disenfranchisement also has significant implications for contemporary democratic and legal theory. Although democratic theorists have only recently begun to pay attention to the issue,12

two areas of concern have emerged. The first focuses on how the apparently “settled” question of the right to vote is unsettled by the rising numbers of disenfranchised felons.13 The second addresses the matter of whether disenfranchisement has any practical political impact. Indeed, it has been suggested that disenfranchisement laws have no practical effect on democratic outcomes.14 Demonstration of such impacts, however, raises the stakes considerably, by, among other things, reducing the representation of voting citizens whose preferences are aligned with those of disenfranchised felons.15

Finally, the racial dimension of felon disenfranchisement provides a central frame around which much of the scholarly and political controversy has been organized.16

Although felon disenfranchisement laws are facially race-neutral, historical antecedents and contemporary disparities have created the widespread perception that race underlies the practice. The major period of the expansion of these laws occurred after the Civil War, in the context of the implementation of the 14th and 15th Amendments. Many of the state laws adopted during this time appeared to target crimes for which African Americans were especially likely to be convicted. In the South, in particular, felon voting bans must clearly be situated alongside other moves to disenfranchise black voters.17 The very high proportion of disenfranchised African Americans today potentially provides a red thread back to the origins of the state laws, while also serving as a painful reminder of the incomplete civil rights revolution and lingering race-based political inequalities.18

In this paper we address each topic (citizenship, democracy, and race) that lies at the center of political and scholarly controversies about felon disenfranchisement. We begin by examining the historical and legal origins of felon disenfranchisement in the United States, tracing the laws from their roots in premodern societies through their growing adoption or extension in the nineteenth and twentieth centuries, and the accompanying legal controversies over disenfranchisement. We then consider the contemporary impact of disenfranchisement on voting rights and recent elections. Finally, we turn to the recent policy debate, discussing public opinion, international practices, and the impact of disenfranchisement on offender reintegration.

Felon Disenfranchisement in the United States

Since the United States became a nation, states have punished malefactors by restricting the fundamental rights of citizenship, including rights of political participation. In light of their contemporary impact, it is important to ask how these laws came into existence.

Historical origins of felon disenfranchisement

Criminal disenfranchisement has an extensive history in Greece and Rome, as well as in medieval Europe and the English law of attainder.19

In ancient Greece, for example, imposition of the status of atimia (literally outlawry associated with the loss of rights either temporarily or permanently) upon criminal offenders carried with it the loss of many citizenship rights. The penalties for the ancient Roman punishment of infamia (a condition of disgrace or condemnation for those pronounced infamous by the courts)20 included the loss of suffrage and the right to serve in the Roman legions (a desired opportunity). In medieval Europe, the legal doctrine of “civil death” not only resulted in a complete loss of citizenship rights, but also it left offenders, in extreme cases, exposed to injury or death, since they could be killed by anyone with impunity.21 English law continued this tradition of disenfranchisement with the penalty of attainder, which in extreme applications led to the loss of all civil rights.

The permanent removal of civil and political rights for criminal offenders practiced in premodern polities has been almost universally abandoned in the modern world. In the United States, however, the development of the right to vote followed a different path than in other democratic countries.22

Nonpropertied white men generally gained the franchise earlier in the United States, although for other segments of the population the right to vote came much later in the nation's history and only after protracted struggles.23 Most state constitutions explicitly gave their legislatures the power to pass laws disenfranchising criminals. Yet, prior to the adoption of white male suffrage and the development of state criminal justice institutions, these laws were rare, and generally limited to a few specific common law offenses.24 In 1840 only 4 of the then 26 states had felon disenfranchisement statutes.25 From the 1840s onward, however, states began adopting and expanding their restrictions on felons and ex-felons, broadening the scope of crimes covered and the proportion of offenders involved.26

Figure 1 charts the development of state laws since 1840. It shows the percentage of states with various types of disenfranchisement laws (distinguishing states with no ban, states disenfranchising inmates, states disenfranchising inmates plus parolees and/or probationers, and states disenfranchising ex-felons).

Changes in state disenfranchisement law by class of felons disenfranchised

The figure illustrates two noticeable waves of disenfranchisement laws in the nineteenth century. The first, beginning in the 1840s, followed the decline of property (and other) restrictions on white male suffrage. Although at least one scholar has suggested a clear link between the two,27

Elliott 1974.

so far as we know this era has not been systematically investigated by historians or other social scientists and thus relatively little is known about the reasons behind this first upsurge of disenfranchisement laws.28

The second wave occurred after the Civil War. In the South, both during and after Reconstruction, many states expanded their restrictions on the felon population (which for the first time began to contain large proportions of African Americans), the first step in a larger process of disenfranchising African American voters. These measures included the extension of disenfranchisement to cover a wide range of crimes not previously included among the common-law felonies.29

The extensions appeared directly targeted at crimes for which African Americans were primarily charged (this was especially true for all crimes of “moral turpitude” in the post–Civil War South).30 In the North, the controversial enfranchisement of African Americans following the adoption of the 15th Amendment may have encouraged a similar if less blatant race-based pattern.31

In fact, our event-history analysis of the factors predicting the adoption of restrictive felon disenfranchisement measures by state governments between 1850 and 2002 finds that states with larger proportions of nonwhites in their prison populations were more likely to pass restrictive laws, even after statistically controlling for the effects of time, region, economic competition between whites and blacks, partisan control of government, and punitiveness.32

Ibid.

This research suggests a direct connection between racial politics and felon disenfranchisement, one that drew upon widespread stereotypes about the propensity of African Americans to commit crimes.33

The twentieth century featured a third wave of change in disenfranchisement laws. As illustrated in figure 1, the proportion of states disenfranchising ex-felons declined sharply after the late 1950s. Throughout the twentieth century an increasing number of states disenfranchised some categories of felons and many states revised their laws to cover a wider range of crimes. Nevertheless, there was little systematic patterning of these changes during the century until the liberalization wave of the 1960s and 1970s, when 17 states repealed ballot restrictions for ex-felons.34

The period of liberalization began during the height of the civil rights movement. The increasing importance of black voters (outside the South), and possibly black legislators as well, appears to have promoted the adoption of more liberal voting regimes for criminal offenders; in contrast, though, the proportion of African American prisoners reduced the likelihood that a state would liberalize, as in the South.35

Legal aspects of felon disenfranchisement

Unlike the constitutions of virtually all other democratic countries, the U.S. Constitution does not provide for a universal right to vote for all citizens. Since the Civil War, the federal government has adopted a series of amendments that require states to extend voting rights to various categories of citizens who had previously been denied (in some or all states) the franchise.36

The 14th Amendment defined national citizenship; the 15th Amendment extended the right to vote to African American men; the 19th Amendment provided for women's suffrage; the 23rd Amendment provided federal voting rights for residents of the District of Columbia; the 24th Amendment prohibited poll taxes; and the 26th Amendment extended the vote to 18-year-olds.

But none of these amendments explicitly extended voting rights to those citizens barred from participation due to a past or current felony conviction.

The 14th Amendment, in fact, features a relatively obscure passage that serves as a legal basis for felon disenfranchisement. Buried alongside the famed Equal Protection and Due Process clauses of Section 1 of that Amendment, Section 2 provided for the reduction of a state's representation in the House of Representatives in the proportion to which the state denied adult men the right to vote. However, Congress added the qualification that the provision did not apply for the exclusion of those convicted of “rebellion or other crimes.” Most legal scholars have rejected a narrow or literal reading of this passage when applied to the broader issues raised by ex-felon voting rights as they evolved after 1868, both because of the likely intent of Congress to link “other crimes” to war-related offenses37

and because of the vast expansion of the criminal justice system after 1868.38 Yet with very few exceptions, federal courts have allowed even the strictest of these bans—those on ex-felons who have finished their entire sentences—to remain in place. This has continued even in the post–Voting Rights Act era and in the face of strong evidence that these bans have a disproportionate racial impact. The controlling case, Richardson v. Ramirez,39 with a majority decision written by then Associate Supreme Court Justice William Rehnquist, upheld the constitutionality of felon disenfranchisement laws as consistent with the intent of the 14th Amendment.

Recent legal challenges have not, to date, overturned that decision. Although the Court did strike down Alabama's broad disenfranchisement law in 1985—the Court found that the state's law was substantially motivated by racist intent in violation of Section 1 of the 14th Amendment40

—it only required the state to rework its law, not to eliminate its ex-felon restrictions altogether.

Felon Disenfranchisement Today

Reflecting an absence of national standards, there is wide variation in state laws regarding voting rights for felons and ex-felons. Four categories of criminal offenders are distinguished by state disenfranchisement laws: (1) convicted felons who are currently incarcerated; (2) felons who have been previously incarcerated and released from prison under parole supervision; (3) felons sentenced to probation rather than prison (and thus never incarcerated); and (4) ex-felons who have completed their entire sentence and no longer have any official contact with the criminal justice system. Only two states, Maine and Vermont, currently allow all felons to vote, including those serving time in prison. At the other extreme, fourteen states bar some or all ex-felons from voting (details are in notes to table 1).

Summary of state felon disenfranchisement restrictions

Table 1 summarizes the types of restrictions in place in each state at the end of 2002. In between the ends of the continuum (states that disenfranchise all ex-felons and those that allow all felons to vote), a variety of intermediate restrictions exist. For instance, 14 states disenfranchise only currently incarcerated felons, allowing felons who were released from prison or who were never sent to prison to vote; 4 disenfranchise both felon inmates and parolees, but allow those sentenced only to probation to vote; and another 16 states add probation to the list of proscribed offenders.

Given the wide variation in state policies regarding felon and ex-felon voting rights, determining the size and distribution of the disenfranchised felon population requires a state-by-state canvass. In other work, we have developed a demographic life-table analysis in order to estimate the overall distribution of disenfranchised felons in each state, taking into account each state's distinctive laws.41

While counts of the incarcerated, parole, and probation populations are fairly straightforward, determining the size of the disenfranchised felon population is far more complicated. Because many ex-offenders will commit further crimes (and receive further criminal justice sanctions), and others die, there is a danger of overcounting or double-counting the ex-felon population unless appropriate adjustments are made for both recidivism and mortality. Incorporating such adjustments, we estimate that approximately 4.7 million disenfranchised felons were prevented from voting during the 2000 presidential election.42

Uggen and Manza 2002. Cf. Fellner and Mauer 1998, who estimated the disenfranchised felon population in the late 1990s at 3.9 million. Noncitizen immigrants, representing a small but unknown percentage of disenfranchised ex-felons in the United States, are generally unable to vote regardless of their felony conviction status. Because detailed data on noncitizens in the state criminal justice system are unavailable, we can only crudely estimate the size of this population. Applying figures based on an Urban Institute report on illegal aliens in the criminal justice system (Clark and Anderson 2000) and a U.S. Department of Justice report on Noncitizens in the Federal Criminal Justice System (1996a), we estimate that noncitizens could comprise approximately 3–5 percent of the ex-felon population.

Because ineligible felon citizens are nonetheless included in the denominator used to calculate official turnout rates, the growth of felon disenfranchisement has made a significant contribution to the overall turnout decline since the 1960s.43

Our estimates are likely to be conservative. But is there any chance they are too high? For example, it is possible that some felons are slipping through the cracks, improperly registering and voting because of poor bookkeeping practices in state voter registration systems. In fact, follow-up canvasses of a few hotly contested elections with recounts—including the Florida recounts of the 2000 presidential election—reveal evidence of such activity.44

Arthur, Dougherty, and Yardley 2002; Kidwell, Long, and Dougherty 2000; McBride and Spice 2000; Freedberg 1998. In the most detailed investigation available, the Florida 2000 case, alongside the handful of ex-felons improperly registered to vote were other nonfelons improperly purged from the voting rolls. Stuart 2002 develops a scholarly assessment of the consequences of Florida's attempts to purge felon voters from the rolls; a popular account documenting excessive purging may be found in Palast 2001.

We do not believe, however, that such cases are likely to significantly reduce the overall size of the disenfranchised felon population. Based on what has been systematically documented so far, the national impact is likely to be modest. Yet, outside of a handful of follow-up investigations, it is simply impossible to know from existing sources exactly how many illegal felon voters are participating in electoral contests.

But even if relatively large numbers of formally disenfranchised felons are voting, there are still good reasons to believe that, overall, we have significantly understated the full extent of the disenfranchised population. For instance, our estimate of 4.7 million disenfranchised felons does not include unconvicted felons whose entanglement in the criminal justice system makes it difficult or impossible to vote. These include the 275,500 jail inmates serving sentences for misdemeanor offenses and the approximately 321,000 unconvicted pretrial detainees who were in jail on the day of recent national elections.45

Both of these groups are practically, if not legally, disenfranchised in most states.

Further, while some felons may be improperly voting, an even greater number of eligible ex-felons may be avoiding the polls due to the mistaken belief that they are subject to permanent disenfranchisement. In Minnesota, for example, our in-depth interviews with current felons (both in and out of prison) revealed that many were unaware that their right to vote would be restored after they complete their sentences.46

Thus, many former offenders who are actually eligible to vote may be inadvertently taking themselves out of the political process because they misunderstand the details of the laws governing voting rights in their state. Taking these points into account, it is likely that the de facto disenfranchised population is larger than our estimates assert and that our estimates understate the full impact.

And who are the disenfranchised? Figure 2 provides a graphical display of the results of our analysis of the composition of the country's disenfranchised felon population. The figure is startling: only about one-quarter of the disenfranchised felon population is currently in prison. Because of the steady cumulation of their numbers over time (in those states that disenfranchise for life), more than one-third of the disenfranchised are ex-felons. The rest are either on probation (28 percent), on parole (10 percent), or serving felony sentences in jails (one percent).

Estimated distribution of legally disenfranchised felons in the United States 2000 (Manza and Uggen 2002)

Does the Disenfranchisement of Nonincarcerated Felons Matter for American Politics?

In view of the exceptional nature of the disenfranchisement regime, it is important to ask whether the disenfranchisement of nonincarcerated felons (as opposed to all felons) has any practical impact on American electoral politics. The nature of our question—how many of these felons would have voted if they had been allowed to?—is by definition counterfactual since they cannot currently participate.

We are hampered by the near-total lack of existing survey data that includes both information about criminal history and political behavior. Our solution to this problem is to “match,” as closely as we can, the characteristics of the felon and ex-felon population to the rest of the electorate using existing representative national election survey data. This procedure identifies two groups of otherwise similar individuals (“similar” on the social characteristics for which we have information about the felon population): one group is able to vote, the other is not. Historical changes in punishment are relevant for thinking of this as a kind of natural experiment. For example, far more individuals today are receiving felony convictions than in the period before 1972. If the punishment practices of that earlier era existed today, many of those currently disenfranchised would be able to vote. Thus, many disenfranchised felons have received a “treatment” that puts them in a different category than identically situated individuals in, say, 1970.

This matching exercise draws on data about the social characteristics of convicted felons available from the periodic Survey of State Prison Inmates data series, first carried out in 1974 and every five years or so thereafter.47

A fairly clear portrait of criminal offenders emerges from this profile: they have low levels of education; low incomes and high unemployment rates (at the time of incarceration); and they are disproportionately African American (representing just under 50 percent), with a growing Hispanic presence reducing the proportion of inmates who are white.

We can use information about the felon population to develop estimates about what proportion of felons might have voted in recent elections if they had been eligible. We would predict that using sociodemographic information should both depress and inflate the impact of felon disenfranchisement. On one hand, we expect that felons would be far less likely to vote than the rest of the general public; on the other, we also expect (given low education levels, the high proportion of African Americans, and low mean incomes) relatively high levels of Democratic partisanship.

We used two datasets for this analysis: for turnout, we used data from the Current Population Survey's (CPS) Voter Supplement module; for voting behavior, the National Election Study (NES).48

See Uggen and Manza 2002 for further details.

When survey respondents are asked whether they voted, they typically over-report turnout. Accordingly, after obtaining self-report estimates of turnout among the hypothetical felon population from the CPS data, we deflate them appropriately, multiplying predicted turnout rates by the ratio of actual to reported turnout for each election.

Estimating turnout and voting behavior among “lost” felon voters

Figures 3a and 3b graph the results of a series of regression analyses predicting turnout rates among disenfranchised felons, if they had been allowed to vote, in presidential elections between 1972 and 2000 (3a), and the same trends for mid-term Congressional elections between 1974 and 2000 (3b).49

Ibid.

In both panels, the top line is the actual turnout rate for the entire electorate, while the bottom line is our estimate of what the turnout rate would have been for disenfranchised felons if they had been entitled to vote (corrected for over-reporting in the CPS data). As expected, we estimate significantly lower turnout rates among disenfranchised felons, with an average of approximately 35 percent estimated to have voted in presidential elections in this period (compared to 52.4 percent of the entire electorate), and 24 percent estimated to have voted in midterm Congressional elections (compared to 37.6% of the entire electorate).

Overall turnout rates and estimated turnout among disenfranchised felons, presidential elections 1972–2000

Overall turnout rates and estimated turnout among disenfranchised felons, midterm elections 1974–1998

Figure 4 shows our estimates of the voting preferences—in U.S. presidential elections, although the patterns for U.S. Senate elections are generally similar50

Ibid.

—for disenfranchised felons by year since 1972 (dashed line), compared to the entire electorate (solid line), again based on a logistic regression analysis that controls for sociodemographic attributes of the felon population. It demonstrates the converse of the picture provided in figure 3 on turnout. In figure 3 the felon line was below that of the electorate as a whole because we find (as expected) lower rates of turnout among disenfranchised felons. In figure 4, by contrast, disenfranchised felons have a significantly higher expected level of Democratic support (the y-axis of the figure). According to our estimates, about 73 percent of the hypothetical felon voters who would have participated in these elections would have selected Democratic candidates.

Democratic preference overall versus felons, major party voters in presidential elections, 1972–2000

By removing those with Democratic preferences from the pool of eligible voters, then, we can conclude that felon disenfranchisement has provided a small but clear advantage to Republican candidates in every presidential and senatorial election from 1972 to 2000.

Electoral impact?

In our previous investigation, we asked the counterfactual question of whether, given estimated levels of political participation and Democratic partisanship among all disenfranchised felons, their votes could have altered the outcomes of recent elections.51

Ibid.

Such an analysis is appropriate to determining whether the loss of voting rights for all felons has influenced electoral outcomes, and we found evidence that seven Senate elections and two presidential elections (one a counterfactual replay of the 1960 election with current levels of disenfranchisement) were potentially influenced by felon disenfranchisement. But a politically more realistic scenario—and, as we discuss below, one consistent with international practice, recent changes in state laws, and public opinion—is to consider the electoral impact of restoring voting rights to felons who are no longer incarcerated: ex-felons, and those on probation or parole. Since a further distinction is typically made between offenders serving out their sentences in their communities (whether on parole or probation), and ex-felons, we also consider whether ex-felon disenfranchisement alone is sufficient to influence political outcomes.

Focusing first on the impact of the most controversial type of restriction, that of ex-felons, we find evidence that a handful of close elections would have had different results if ex-felons had been allowed to vote (the top and middle tier of table 2 identifies these elections). Three Senate elections are likely to have been reversed if ex-felons had been allowed the ballot: Virginia in 1978 (John Warner [R] over Andrew Miller [D]), Kentucky in 1984 (Mitch McConnell [R] over Walter Huddleston [D]), and Kentucky again in 1998 (Jim Bunning [R] over Scotty Baesler [D]). In establishing these estimated results, we applied felon voting behavior estimates (as described earlier)52

Ibid.

and state-level estimates of felon turnout (taking advantage of the large sample size of the CPS to estimate turnout in those specific states with very close Senate election outcomes). To determine the net Democratic votes lost to ex-felon disenfranchisement, we first multiply the number of disenfranchised felons by their estimated turnout rate (in each state), and then by the probability of their selecting the Democratic candidate. Since some ex-felons would have chosen Republican candidates, we then deduct from this figure the number of Republican votes. For the 1978 Virginia election detailed in the top row of table 2, for example, we estimate that 11,773 of the state's 71,788 disenfranchised ex-felons would have voted (16.4 percent). We further estimate that 9,418 of these voters would have selected Andrew Miller, the Democratic candidate (80.2 percent of 11,773), and that the remaining 19.8 percent (or 2,331) would have chosen John Warner, the Republican candidate. This results in a net total of 7,111 Miller votes lost to disenfranchisement in that election, or some 2,300 votes more than the actual Warner victory margin of 4,721 votes. The other cases are calculated in the same way.

Impact of the disenfranchisement of nonincarcerated felons on U.S. Senate elections 1978–2000

In the middle panel of table 2, we note that because Florida is a state that disenfranchises all ex-felons, it is certain that ex-felon votes would have helped Al Gore carry the state and thus the election in 2000. At that time, Florida had approximately 614,000 ex-felons. Had they been allowed to vote, we estimate that some 27.2 percent would have turned out, and that 68.9 percent would have chosen the Democrat, Gore. This would have resulted in a net Democratic gain of 63,079 votes, and a final Gore victory margin of 62,542. Even if we assume that turnout rates among the disenfranchised ex-felons were only half that of the rate projected by our estimates, Gore still would have carried Florida by more than 31,000 votes, a margin large enough to have insured victory even if all other disputed votes thought to favor the Republicans—such as those by overseas military personnel—had been counted.

What if voting rights were restored to all nonincarcerated felons, in keeping with the practice followed practically everywhere else in the world? Not surprisingly, the inclusion of these voters produces additional electoral impacts. The bottom panel in table 2 shows that as many as five Senate elections might have been reversed if probationers and parolees were added to the rolls. The two additional elections potentially reversed are in Texas in 1978, where Tower (R) defeated Krueger (D); and in Florida in 1988, where Mack (R) defeated MacKay (D).

Caveats

Such an analysis is subject to qualifications, and we urge appropriate caution in interpreting our results. Predicting participation and vote choice from a limited amount of information about the sociodemographic attributes of offenders is a fairly crude exercise, but we simply do not have any other information available about the partisan identities, political trust, knowledge or interest, or social networks of disenfranchised felons. Further, a number of unmeasured individual-level factors (such as the strength of citizenship norms or degree of social isolation among offenders) could either depress turnout or reduce Democratic partisanship in ways that we cannot measure. However, a follow-up investigation using the only available data with information about both the criminal history and political behavior of survey respondents (the Youth Development Study, a longitudinal study following a group of public high school students in St. Paul, Minnesota) found that once the same sociodemographic factors used in our investigation are controlled, the difference in turnout between offenders and nonoffenders was reduced to nonsignificance.53

Ibid.

In other words, on the basis of existing data sources it would appear that the problem of potential omitted variable bias is unlikely to threaten the basic pattern of results shown in table 2.

Another potential objection is that our analysis makes the ceteris paribus assumption that electoral contests would be unaffected by the participation of some or all disenfranchised felons, that nothing else about the candidates or elections would have changed. The implications of this assumption for the distribution of votes are likely more substantial than for turnout, although the parties could also change their strategies for mobilizing voters as well. Whether and how the vote-getting strategies of electoral campaigns of any particular election would change is simply impossible to know. We do, however, believe it is likely that the effects on campaign strategies would be minor at best. Since there are a relatively small number of disenfranchised felon voters (even in the unlikely scenario in which all had been enfranchised), it seems highly implausible that either major party would alter otherwise viable campaign strategies—especially in this era of poll-driven “crafted talk”54

and sophisticated campaign management—because of the addition of a small group of previously excluded voters.

Finally, it is important to restate an earlier point: because of the lack of systematic information about the precise neighborhoods and legislative districts where disenfranchised felons originate, we cannot easily estimate the political impact of disenfranchisement below the state level. While many urban districts are one-sidedly Democratic, and thus mute the potential impact, it is nonetheless certain that there is a considerable effect on local, state legislative, and House elections. If the appropriate data could be generated, a systematic canvass of such elections would add considerably to our understanding of the full electoral impact of felon disenfranchisement. Certainly given the heavy concentration of felony convictions in urban areas,55

we would expect that focusing on state-level or presidential elections understates the full electoral impact of felon disenfranchisement.

Contemporary Policy Debates

The rapid growth in the size of the population disenfranchised by virtue of a felony conviction has not gone unnoticed. Because of the vast racial disparities in rates of felony convictions, African American men have suffered the greatest loss of voting rights, with one out of six currently disenfranchised due to a current or past felony conviction. In the face of a mounting civil rights campaign to restore voting rights for nonincarcerated felons,56

several states have recently amended their laws to expand felon voting rights. For example, in 2001 Connecticut and New Mexico both liberalized their felon disenfranchisement laws, with Connecticut allowing probationers to vote and New Mexico agreeing to restore voting rights to felons upon completion of their sentences. That same year, Nevada eliminated its five-year post-sentence waiting period to apply for the restoration of voting rights, although the restoration process for ex-felons is still not automatic. And in 2002 Maryland passed legislation to automatically restore voting rights upon completion of sentence for first-time offenders (and three years after completion for nonviolent recidivists). At the national level, a measure banning the states from placing any restrictions on the voting rights of ex-felons reached the floor of the Senate in February 2002, although it was defeated 63–31.57

A number of states have also moved to adopt more conservative restrictions in recent years. Since 1997, Utah and Massachusetts have disenfranchised inmates, and Colorado and Oregon disenfranchised federal inmates (Colorado disenfranchised federal parolees as well). Overall, a very mixed picture of policy change at the state level emerges. Since 1975, 13 states have liberalized their laws, 11 states have passed further limitations on felons, and three states have passed both types of laws.58

In relation to this emerging policy debate, three pieces of empirical evidence are especially important: the public's opinion on disenfranchisement laws; the manner in which U.S. laws regarding voting rights for criminal offenders compare with those in other democratic countries; and the implications of disenfranchisement laws for the civic reintegration of offenders.

Public opinion

As state and national debates unfold, what do we know about public opinion in this area? The issue of disenfranchisement of felons and ex-felons intersects with two broad trends in public opinion since the 1950s: strong and growing support for civil liberties and civil rights for all citizens; and strong support for anticrime policies, including the harsh treatment of criminal offenders. In other words, public fear of crime and a desire to punish criminal offenders in ways that will reduce their propensity to commit crimes again in the future59

Roberts and Stalans 2000.

coexist alongside broad support for basic civil liberties, democracy, and a right to due process for those accused of crimes.60

Over the last three years, two national surveys have examined the public's opinion on the disenfranchisement issue, and they provide some valuable hints about how respondents weigh these competing objectives. Brian Pinaire and Milton Heumann61

report results of a national telephone survey of 502 Americans, with a single item measuring a gradient of support for felon disenfranchisement. In this 2001 survey, about 10 percent of respondents stated that felons should never lose their right to vote; 32 percent favored suspending voting rights while felons are incarcerated (but not while on probation or parole); 35 percent supported disenfranchisement for prisoners, probationers, and parolees; 5 percent preferred disenfranchisement for parolees and probationers only; and 16 percent favored permanent restrictions on ex-felons as well as current felons (2 percent did not report a preference). Therefore, the Pinaire and Heumann study suggests that while a majority of citizens favor some restrictions on the voting rights of current prison inmates, an even stronger majority rejects the idea of disenfranchising former offenders who have completed their sentences.

Our own national survey, employing a variety of question-wording experiments designed to tap different aspects of public attitudes on the issue, was undertaken in the summer of 2002. As part of its July monthly omnibus telephone survey, Harris Interactive asked 1,000 Americans a range of questions relating to the civil liberties and rights of criminal offenders, including voting rights.62

See Manza, Brooks, and Uggen, forthcoming, for full details about this survey.

Overall, we found strong, but not invariant, public support for the reinfranchisement of criminal offenders not currently in prison. For example, we asked random samples of all respondents a version of a question about their attitudes towards felon voting rights (substituting “people convicted of a crime who have been released from prison on parole and are living in the community” and “people convicted of a crime who are in prison” for “people convicted of a crime who are sentenced to probation”):63

One-quarter of the sample was asked about each group, although the ex-felon item was asked as part of a different question-wording experiment that followed immediately after the question asking split samples of respondents about voting rights for felon probationers, parolees, and inmates. The exact question wording for the ex-felon item was: “Now how about people convicted of a crime who have served their entire sentence, and are now living in the community. Do you think they should have the right to vote?” For this reason, the ex-felon result is not strictly comparable.

There has been some discussion recently about the right to vote in this country. Some feel that people convicted of a crime who are sentenced to probation, but not prison, and are living in the community should have the right to vote. Others feel that they should not have the right to vote. What about you? Do you think people on probation should have the right to vote?

Respondent majorities of 80 percent, 68 percent, and 60 percent favored the idea of restoring voting rights to ex-felons, probationers, and parolees, respectively (see figure 5).Yet fewer than a third of those survey respondents asked about restoring voting rights for current inmates supported that possibility. It is clear from this experiment, as well as from the Pinaire and Heumann study,64

that public support for felon voting rights does not extend to those in prison.

Percentage supporting enfranchisement of ex-felons, probationers, parolees, and prisoners, 2002

U.S. voting laws in comparative perspective

Surveying international practice underscores the exceptional character of the restrictions on the political rights of criminal offenders in the United States. These can be seen in two ways. First, it has the highest incarceration and conviction rates in the world, with incarceration rates six to ten times those of the countries that are most similar to us. For example, the 2000 incarceration rate in the United States was 686 per 100,000, compared to rates of 105 in Canada, 95 in Germany, and only 45 in Japan.65

Similar cross-national disparities can also be found for other correctional populations.66

For comparative probation and parole data, see United Nations 2003.

Current levels of incarceration and criminal conviction are unprecedented not only comparatively, but also historically within the United States. Incarceration and conviction rates remained relatively stable, with some essentially trendless fluctuation, between the 1920s and early 1970s. Since then, however, those rates have exploded. There were fewer than 200,000 prison inmates in 1972; today, there are over 1.4 million.67

With the addition of jail inmates, there are now slightly over 2 million people incarcerated in the United States.68

Ibid.

Similar, though not quite so extreme, trends can also be found in the total number of felony probationers.69 These startling increases in conviction and incarceration rates have laid the foundation for large-scale disenfranchisement.

Yet the full impact of the criminal punishment boom is tempered by some important limitations. Most convicted felons, for instance, eventually get their voting rights restored. In fact, we have estimated (with life-table demographic models adjusting for recidivism and mortality, the same approach used to estimate the disenfranchised ex-felon population) that there are now approximately 13.3 million Americans who have a felony conviction on their record (about 6.5 percent of the adult population).70

Uggen, Thompson, and Manza 2000.

Only about one-third of that group is currently prevented from voting. In addition, many states liberalized their laws in the period immediately preceding the recent boom in criminal punishment, and in its early stages. Had the 1960 status quo been locked in place, and 17 states not loosened their restrictions on ex-felon voting rights over the next two decades, the population of disenfranchised felons and ex-felons would be far larger today, with approximately 10 million disenfranchised citizens.71 Finally, states with lifetime ex-felon bans all have some procedure for the restoration of voting rights, although many of these are cumbersome and not widely used.72 Nevertheless, even with the moderating influence of these measures, the extremely high rates of criminal conviction in the United States provides the basis for much higher levels of disenfranchisement.

The second source of American exceptionalism in regard to offender voting rights lies in the laws themselves.73

Table 3 summarizes cross-national differences in criminal voting rights, based on the comprehensive survey developed by Brandon Rottinghaus.74 As the table shows, many countries allow all criminal offenders to vote—including those currently incarcerated. Seventeen European democracies have no electoral ban on incarcerated prisoners. Israel, Peru, Canada, and South Africa also allow current inmates to vote (col. 1). Nine European nations, as well as Australia and New Zealand, disenfranchise only a portion of current inmates (col. 2; in these countries, restrictions on prisoner voting are typically based on either the length of the sentence, the nature of the crime committed, or the type of election). Thirteen countries bar all current prisoners from voting, but only a handful provide for restrictions on post-release offenders.

International differences in criminal voting rights

The key point to draw from this comparative survey is that the United States is the only country in the democratic world that systematically disenfranchises large numbers of nonincarcerated felons (i.e., those out on probation or parole) and ex-felons.75

Although there are a few exceptions to this generalization, none involve the same proportion of offenders. In Germany, courts have the power to withdraw voting rights for up to five years after the completion of a prison sentence as an additional punishment, although the actual use of such a sanction is very rare (Nora Demleitner notes that in one recent year for which she had data, it was only applied in 11 cases76). French courts can also impose restrictions on political rights that extend beyond the prison sentence, but these are part of the original punishment (and hence do not apply to ex-felons). Finland and New Zealand disenfranchise some ex-felons for political offenses,77 while in Belgium, convicted offenders with long sentences can be disenfranchised for life. But the existence of ex-felon voting bans that affect millions of nonincarcerated citizens, such as those found in the United States today, is unparalleled. In fact, the closest parallels are to various premodern political regimes mentioned earlier, in which criminal offenders were precluded, once marked by legal conviction, from reentering the polity for life.78

Felon disenfranchisement and civic reintegration

The policy contests over felon disenfranchisement raise important and increasingly pressing criminal justice questions that, although ordinarily ignored, should be considered in this debate. A record 630,000 people were released from prison in 2002, and prisoner reentry has emerged as a central concern for research and policy on crime.79

It is perhaps not surprising that, faced with significant disadvantages in the labor market80 and a variety of restrictions on their ability to obtain housing, receive government benefits, and enjoy other civil rights,81 almost two-thirds of released prisoners are rearrested within three years.82 Research on the factors promoting desistance from crime has shown it to be closely linked to a successful transition to work,83 family,84 and community85 roles. In a recent review of research on transitions from prison, Christy A. Visher and Jeremy Travis suggest a plausible connection between voting rights and successful reintegration, identifying factors such as joining a community organization and becoming politically active as potential milestones in the reintegration process.86 Denying voting rights to ex-felons, or to felons living in their communities on probation and parole, undermines their capacity to connect with the political system and may thereby increase their risk of recidivism.

Conclusion

The case of felon disenfranchisement is a powerful reminder that even the most basic elements of democratic governance, such as a universal right to vote, can still be threatened in a polity otherwise asserting its democratic credentials. It exemplifies how “waves of democracy”87

Markoff 1996.

do not necessarily move in unilinear fashion towards greater inclusiveness.88 Yet, the emergence of a civil rights campaign to remove the most extreme state restrictions on the voting rights of nonincarcerated felons, and the strength of public support for voting rights for nonincarcerated felons, demonstrate the enduring motivational force of the ideal of democracy and the goal of an inclusive polity.

The variety of empirical evidence presented here provides a distinctive view of the disenfranchisement issue. Three points stand out in relation to the broader questions of democracy, citizenship, and race that we posed at the outset. First, our empirical investigation of the origins of felon disenfranchisement laws, as well as their significant impact on the African American community, suggests both a causal role for race and an important set of race-related impacts. Second, the evidence we have presented about the extent of the loss of voting rights, contemporary electoral impact, and strong public support for the restoration of voting rights for nonincarcerated felons raises vital issues for the American practice of democracy today. Finally, we have outlined evidence that the right to vote can be meaningfully connected to the civic reintegration of individual offenders, and have identified a sharp distinction in the citizenship status accorded nonincarcerated offenders in the United States relative to those in the rest of the democratic world. Taken as a whole, this evidence suggests a strong case for rethinking the current practice of disenfranchisement.

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Figure 0

Changes in state disenfranchisement law by class of felons disenfranchised

Figure 1

Summary of state felon disenfranchisement restrictions

Figure 2

Estimated distribution of legally disenfranchised felons in the United States 2000 (Manza and Uggen 2002)

Figure 3

Overall turnout rates and estimated turnout among disenfranchised felons, presidential elections 1972–2000

Figure 4

Overall turnout rates and estimated turnout among disenfranchised felons, midterm elections 1974–1998

Figure 5

Democratic preference overall versus felons, major party voters in presidential elections, 1972–2000

Figure 6

Impact of the disenfranchisement of nonincarcerated felons on U.S. Senate elections 1978–2000

Figure 7

Percentage supporting enfranchisement of ex-felons, probationers, parolees, and prisoners, 2002

Figure 8

International differences in criminal voting rights