Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement

The tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, two federal courts of appeals have recently reinstated challenges to such laws. A number of states have recently made it easier for ex-offenders to regain their voting rights. Recent public opinion surveys find overwhelming support for restoring the franchise to offenders who have otherwise completed their sentences. On the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. This essay discusses some of the causes and consequences for the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes are seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement. Felon disenfranchisement cases offer an attractive vehicle for courts concerned with the staggering burdens the war on drugs and significantly disparate incarceration rates have imposed on the minority community. The legitimacy of criminal punishment depends on the legitimacy of the process that produces and enforces the criminal law. The legitimacy of that process in turn depends on the ability of citizens to participate equally in choosing the officials who enact and administer criminal punishment. Lifetime disenfranchisement of ex-offenders short circuits this process in a pernicious and self-reinforcing way. Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory - as I think we must - this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining. Blanket disenfranchisement statutes also raise serious questions under the Eighth Amendment, given the Supreme Court's recent decisions in Atkins v. Virginia and Ewing v. California.