When a criminal completes his sentence and is released from prison, he can take one of two paths. He can revert to his lawless ways, or he can become indistinguishable from most Americans by working at an honest job, paying his taxes, respecting the rights of his neighbors, and staying out of trouble. In the best scenario, the ex-convict will do everything that good citizens do—exercise his freedom of religion, express his political opinions, petition the government, be free of unreasonable searches, or avoid self-incrimination. Everything, that is, except vote.
In 11 states, ex-convicts automatically and permanently lose their right to participate in elections. Currently, 1.4 million offenders are denied the franchise. The only exceptions are ex-convicts who obtain pardons, which are rare. (The states that permanently bar all ex-convicts from voting are Alabama, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, New Mexico, Tennessee, Virginia, and Wyoming.)
The impact is greatest among racial minorities. “In seven states that deny the vote to ex-offenders,” reports the Sentencing Project, “one in four black men is permanently disenfranchised.” It’s fair to say that this policy is the biggest hindrance to black voting since the poll tax.
Revocation of the franchise as a punishment for crimes goes back to ancient Greece and Anglo-Saxon England. It is specifically provided for in the 14th Amendment to the Constitution, and the Supreme Court has upheld the specific laws. But it survives today in America mainly as a vestige of the past—widely accepted but rarely examined.
When, during a Des Moines debate, Al Gore and Bill Bradley were asked if the practice ought to be reconsidered, both endorsed the ban. “The principle that convicted felons do not have a right to vote is an old one, it is well-established,” announced Gore, who said he supported the “established principle that felonies—certainly heinous crimes—should result in a disenfranchisement.” Bradley would go no further than to say, “If someone is in on a nonviolent offense and comes out and is able to go straight for two years, three years, I think that person ought to be able to wipe his record clean and start the day anew.” Neither seemed to be aware that most states, including Bradley’s New Jersey, now let ex-convicts vote. Four states—Maine, Massachusetts, Utah, and Vermont—go so far as to let inmates vote.
Letting convicts vote is too much. As Stanford law professor Pamela Karlan argues, somebody serving 20 years in a downstate Illinois prison has no business picking the mayor of Chicago, where he no longer lives. And allowing inmates to vote in their current place of residence presents obvious dangers. Imagine the occupants of a large, maximum-security penitentiary voting as a bloc and essentially running the small town in which their prison is located.
But when it comes to felons who have paid their debt to society, it’s hard to see what we gain from blocking the door to the voting booth. It doesn’t deter them from breaking the law again, since nobody who is willing to risk imprisonment is going to be scared straight by the prospect of losing the franchise. It does nothing to make the victims of the cons’ crimes whole.
One rationale is that it protects good government by preventing crooks from voting for lax law enforcement. Another is that it helps prevent voting fraud. But it’s exceedingly unlikely that ex-cons would organize to elect a corrupt district attorney—or that, if they tried, they would succeed. Nor is there any reason to think ex-convicts are especially prone to stuffing ballot boxes or rigging voting machines. Barring all ex-offenders from the polls makes about as much sense as forbidding tax cheats from working with children. If election security is the worry, we could limit the ban to those who have broken campaign- and voting-related laws.
Another justification for denying ex-convicts the vote is that criminals have shown themselves incompetent to participate in self-government. One famous 19th-century court decision endorsed the disenfranchisement of ex-convicts because they, like “idiots, insane persons and minors … lack the requisite judgment and discretion which fit them for the exercise.” But we let minors vote when they reach the age of majority, and neither the mentally ill nor the mentally retarded are generally prohibited from voting. By the same logic, a lawbreaker who has atoned for his offense ought to be presumed fit to vote.
But taking account of such distinctions is at odds with the nature of this custom, which is purely, and mindlessly, punitive. Punishment, of course, is one function of the criminal justice system. Another important one, though, is rehabilitation: encouraging and preparing lawbreakers to change their ways. Irrevocable disenfranchisement, however, amounts to a repudiation of the latter goal. It tells the offender that no matter what he does, he can never fully rejoin the community he sinned against. Instead of fostering the criminal’s healthy reintegration into society, we promote perpetual alienation.
Hard-liners may say too bad—that’s the price of making war on the law-abiding. But who suffers from this sanction? Not the impenitent ex-con, who is unlikely to waste his time on such chump rituals as voting. The only people who suffer are those who go straight, do their best to abide by social and legal norms, and hope to be accepted as full members of society. Some ex-convicts want to make the journey from criminal to full citizen. It’s in their interest and ours to help them. Let them vote.