//  7/27/17  //  Commentary

The Trump administration’s controversial voter fraud commission has put voting rights issues in the headlines. Here on Take Care, I recently wrote about the importance of including felon re-enfranchisement in the voting rights agenda. Even though protecting or restoring the voting rights of those who have committed felonies may seem like an uphill battle, recent events suggest that incremental bipartisan progress is possible. Consider, for example, Alabama's recent felon re-enfranchisement legislation, which unanimously passed both houses, was signed into law by a Republican governor, and won praise even from leftist sources.

While in future posts I will examine the constitutionality of disenfranchising felons—including those who have completed prison, probation, and parole—in this post I thought it worth pausing to reflect first on supposed policy justifications for disenfranchisement. Whether disenfranchisement serves governmental interests can determine the outcome of constitutional analysis, and so available information about its effects is ultimately relevant to the legal inquiry.

A number of practical considerations support preserving or restoring the voting rights of those who have committed felonies. In particular, if the goal is to prevent those who have committed felonies from reoffending, available evidence indicates that disenfranchising felons serves that goal rather poorly. Indeed, empirical research suggests that restoring voting rights, along with other mechanisms of civic participation, can help those who have committed felonies reintegrate successfully into society and reduce the likelihood of recidivism.

The idea of inviting felons into society as stakeholders has a degree of intuitive appeal. By exercising their civil rights through voting, felons learn to see themselves as legitimate participants in society—a self-perception inconsistent with reoffending. Likewise, voting encourages felons to invest in their communities and in society as a whole by allowing them to participate in the political process and influence policies that affect them and their families.

Investigators have found a correlation between voting behavior and likelihood of recidivism. In one study, former felons who voted in 1996 were only half as likely to be rearrested during the years 1997-2000 as those who did not vote. Of course, correlation is not causation, and the study neither proves nor disproves that voting caused the rehabilitation of felons who voted. But this information does suggest that voting forms part of an overall pattern of behavior that, collectively, may help to prevent former felons from reoffending. The researchers who conducted the study acknowledged that “the single behavioral act of casting a ballot is unlikely to be the single factor that turns felons’ lives around,” yet also suggest that “it is likely the act of voting is tapping something real, such as a desire to participate as a law-abiding stakeholder in a larger society.”

Other researchers concur. Criminologist Shadd Maruna explains that “ex-offenders who desist seem to find some larger cause that brings them a sense of purpose,” which might include involvement in public affairs. He argues that re-enfranchisement can serve as a “reintegration ritual” that helps a former offender become part of law-abiding society. In a similar vein, legal scholars Guy Padriac Hamilton-Smith and Matt Vogel reason as follows: “if ex-offenders are not deserving of the protections of the law, then there is even less reason for them to abide by it.”

Exclusion from civic rituals such as voting has consequences. As then-Senator Lyndon B. Johnson commented: “A man without a vote is a man without protection. He is virtually helpless.” This helplessness may interfere with the rehabilitative process. In their seminal book on the subject, sociologists Jeff Manza and Chris Uggen interviewed felons and found that voting was important to them. Disenfranchisement brought painful feelings of exclusion from society. One ex-offender explained: “I . . . would like someday to feel like a ‘normal citizen,’ a contributing member of society, and . . . that's hard when every election you're being reminded.” Another said of the inability to vote: “On top of the whole messy pile, there it was. Something that was hardly mentioned, and it meant a lot.” A third characterized disenfranchisement as “salt in the wound,” adding that it reminded her of her ex-offender status at every election.

Such rehabilitative implications may well extend beyond voting to participation in other mechanisms of democracy. During the year I spent clerking on a trial court in Washington DC, I witnessed firsthand the excitement of a man who had been convicted of a felony, served his time, and was eventually summoned for jury service in my judge’s courtroom. While many prospective jurors were annoyed that they had to be at the courthouse, for this man it meant that he was once again a full member of society. He explained his situation during voir dire and said he had never before been called for jury duty and was honored to serve. “We’re glad to have you here,” my judge said to him, and I saw tears in the would-be juror’s eyes. Anecdotes are no substitute for research, but they help to bring to life what is already supported by intuition and evidence.

Re-enfranchising felons is also consistent with international practice in other developed nations, which tend to have lower ratesof recidivism as compared to the United States. Canada's highest court, for instance, has held that prisoners have a right to vote under the Canadian Charter of Rights and Freedoms. That court held: “To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility.” All prisoners can vote in much of Europe, and while France and Germany do disenfranchise a minority of felons while they are incarcerated, following release their voting rights are restored. While disenfranchisement may be unremarkable in the United States, it stands out beyond our borders, and reflects a striking difference in attitudes toward the entire purpose of the criminal justice system.

The purported benefits of felon disenfranchisement are part of the calculus in determining its constitutionality. And if disenfranchising felons does nothing to help rehabilitate them—indeed, if it may in fact harm the rehabilitative effort—then that reality undermines the governmental rationale for disenfranchisement in the first place. Bipartisan consensus is unfortunately rare in recent months, but surely we can all agree that preventing crime and reducing recidivism are worthy goals. If we can also agree that total loss of voting rights does not serve these goals, then perhaps we can move forward across party lines to mitigate overly harsh laws stripping ex-offenders of voting rights for life.

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