The Case for Felony Enfranchisement: Why Democracy Must Extend Behind Bars

Graphics by Madeline Barber

At the current stage of national discourse, it is almost trite to state that Americans have become increasingly polarized across the political spectrum. Increasingly contentious elections and politics have called into question fundamental principles, including free expression, individual autonomy, and equality. The American public’s growing disenchantment with the idea of finding common ground can be understood through this context. As a result, many efforts have sprung up to rally people around a rare occurrence of shared principle: the importance of political engagement. Most often, we see this in the form of major efforts to encourage high voter turnout, civic engagement, and political participation writ large. 

Though many prominent bipartisan and nonpartisan institutions, politicians, and citizens on grassroots levels have heralded the act of voting as the utmost essential component of democracy, few have acknowledged the inherently antidemocratic issue of stripping people with felony convictions, a demographic consisting of a startling 4.4 million American citizens, of their voting rights. By censoring and excluding the political voices and interests of a specific group of people, felony disenfranchisement policies debase the nation’s integrity, operating on principles contradictory to a democratic-republic form of government. Felony disenfranchisement policies hurt the nation by disproportionately suppressing voters of lower socioeconomic status, discouraging political and civic education, and creating political outcomes that do not align with the interests of constituents.

Virginia law holds that once a citizen is convicted of a felony, they permanently lose their right to vote. Once convicted, individuals can only regain their vote upon the governor’s approval after petitioning for their individual situation. According to a report from the Brennan Center for Justice, Virginia's disenfranchisement laws were the most severe in the nation at the time of their analysis. Twenty-five other states have legislation prohibiting restoration rights even after release from prison. Out of these, eleven have laws that allow for permanent disenfranchisement if convicted of various state-specific crimes. Only Maine, Vermont, and Washington, D.C. do not maintain any form of criminal disenfranchisement law. Even then, Maine and Vermont laws maintain smaller yet significant inequities; they do not allow incarcerated people to vote as a resident of the town they are detained in (unless residency was already established before incarceration), so their collective vote cannot sway local politics that directly affect them. Despite the systemic flaws within the Maine and Vermont legislation, their voting models certainly afford people with felony convictions more of their basic rights to political participation than other states in the nation. These states have also coordinated efforts with external groups such as the NAACP to host voter registration drives and provide informational literature in prisons to encourage inmates to vote. Working off their models to create a truly universal approach to voting rights could ameliorate disproportionate suppression of socioeconomically marginalized voters, discouragement of civic education, and political outcomes that do not accurately represent the interests of the people directly affected by local politics.

Felony disenfranchisement directly hurts the American vision of democracy. From the earliest days of its existence, a democratic-republican form of government recognizes the opportunity for political participation as a hallmark of democracy. ‘I voted’ stickers and voter registration drives exist for a reason; we widely value the act of voting, and in the 21st century, the equal opportunity to do so. 

By design, disenfranchisement policies have targeted would-be voters of lower socioeconomic status since their conception. Many criminal disenfranchisement policies were implemented after the Civil War, coupled with new criminal laws targeting previously enslaved Americans. These included the now-infamous “Black Codes,” which weaponized vagrancy charges and petty crime to incarcerate Black Americans and thus revoke their recently granted right to vote. Echoes of this rhetoric can still be heard in felony disenfranchisement laws today. Nonviolent crimes such as minor drug offenses can be punished by permanent disenfranchisement, leading to a disproportionate effect on historically marginalized groups, specifically Black and Latino Americans and economically disadvantaged Americans. A 12 percent gap between white voters and nonwhite voters was seen in the last presidential election, coupled with a Black incarceration rate 3.4 times higher than its white counterpart. This discrepancy certainly creates a formula disproportionately targeting certain  Americans,  which is unjust according to 21st-century principles of democracy. 

Felony disenfranchisement is reminiscent not only of former oppressive practices but also of current suppression methods. Voter ID laws, restrictions on voter registration, and redistricting have all disenfranchised Americans in a way that leads to results similar to those of felony disenfranchisement. These trends ultimately lead to election outcomes that may not reflect the true interests of the people, particularly in places with especially high incarceration rates. Even if previously incarcerated Americans regain the right to vote, long prison sentences ensure that the critical voices of these members of society will miss multiple election cycles, contributing to skewed results that may not reflect the changing and current demographics, interests, and wishes of constituents. 

While voter turnout suffers from missing potential votes, this is not the only concern felony disenfranchisement raises. It also leads to a long-term decrease in political efficacy, civic education, and other core pillars that are required to make a democracy function. Though voter turnout has increased in recent years, it still falls far behind many other democratic countries. Americans of all political ideologies often lament this lack of engagement. Some blame it on a lack of education, others believe it is a demographic issue — amidst all the finger-pointing, many don’t recognize how felony disenfranchisement contributes to larger issues of political efficacy. 

Some raise issues with enfranchising Americans with felony convictions due to their view that voting is a responsibility and privilege, rather than a right. Many are quick to point to governing documents and history ranging from legal precedent to the Constitution to argue that no official rule names voting as a fundamental right. However, the same can be said for other rights we consider basic to our status as American citizens today. For example, it was not until the 1960s that judicial lawmaking legally formalized the right to privacy in Griswold v. Connecticut, stating that the concept preceded the American system. The word “privacy” does not show itself once in the constitution, and yet, it is both legally and socially recognized as a keystone right. In the same vein, political participation is an integral and implied idea in any democratic system.  It is a notion that extends beyond the realm of explicit language and rather roots itself in the very concept of democracy. Understanding this allows us to recognize political participation not as a special privilege or prerogative to be possessed by those who can socially or economically afford it, but instead as a right as basic as free speech. 

Still, others will argue that convicted felons are not suited to vote due to mental, emotional, or other related incapabilities. In their eyes, the implications of committing a felony act should raise the level of moral scrutiny we assess that individual with, to the point that we substantially restrict their ability to participate in politics, and therefore, society. This viewpoint relies on stereotyped perceptions of criminals, coupled with a lack of empathy for those who have been convicted. Most crimes committed in America are not the extremely violent and physically harmful acts sensationalized by the media and tough-on-crime politicians. This is absolutely not to mitigate the irrevocable harm done to victims in serious cases involving assault and undue violence,  but simply to demonstrate that the majority of people behind bars are not the brutish, constantly-violent caricatures (often stemming from racialized and financially-condescending heuristic representations of criminals) portrayed in popular culture. The deservingness and ability of incarcerated members of society to politically participate cannot be defined by broad strokes based on constructs of what we label as criminal “tendencies” — to insinuate so is to erase their personhood and potential to reintegrate into society. Ultimately, this vision of restricted voting prioritizes punitive measures over productive ones. 

Taking away the right to vote during and after convicted people are incarcerated only further alienates a significant part of the American population from their surrounding society. By politically isolating incarcerated people, any trace of civic education is gone. This discourages previously incarcerated Americans from seeking the adequate resources and knowledge to civically engage and politically participate, creating a vicious cycle of suppressive practices surrounding voting, contradicting the democratic-republican frame of our government.

 At a time when people across the political spectrum are losing faith in democracy and growing increasingly disillusioned with the promises a democratic society makes to its people, it is critical to evaluate the policies that dictate voting rights. In order to truly democratize the process, laws cannot negate the voices of an entire group of people. It is high time for the United States to join many other democratic countries in replacing felony disenfranchisement laws with a universal voting rights model. This model will center reintegration and equality in the justice system, while also ensuring a truer democracy. Only by doing this can we truly encourage political participation that accurately reflects the people’s interests, overcome historical inequalities, and work towards a more equal and democratic future.