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Understanding Felon Disenfranchisement Laws &
The Individuals Affected, Part 1:
The History of Felon Disenfranchisement (1600's - Present)
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The Transformative Justice Coalition and the Voting Rights Alliance, in honor of Black History Month, are reviving the daily special series devoted to sharing the legacies and stories of the sheroes, heroes, and events in the fight for Black suffrage. This series was created in 2017 and will add several NEW articles this year. In addition to these daily newsletters all February long, this series also incorporates daily social media posts; an interactive calendar; and, website blog posts to spread the word broadly.
Feel free to publish on your social media outlets, with credit given to the Transformative Justice Coalition.
In light of the recent attempts to ban Black History, we are even more pleased to share these stories this year. We encourage everyone in the 18 states that are banning Black History to share these stories broadly!
We encourage everyone to share this series to your networks and on social media under the hashtag #VRABlackHistory. You can also tweet us @TJC_DC to share your own facts.
Others can sign up for the daily articles or view more Black History articles at VotingRightsAlliance.org.
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This article was authored by Caitlyn Cobb. Note from the author: If this article looks familiar, it is because it was originally written by Caitlyn in 2016 for The Transformer Newsletter. We are republishing this article in the 2023 #VRABlackHistory Series as background for an updated article, to be released tomorrow, on the current 2023 fight for voting rights for people with past felony convictions. | |
Do you want to make a difference like those honored during this series? |
Houston 2023 Gen Z and Millennial Votes Matter Training Application - Deadline to apply: February 28th, 2023 | The Transformative Justice Coalition (TJC) is hosting a non-partisan interactive virtual Gen Z and Millennial Votes Matter Leadership Training Event to be held March 29-April 2, 2023. This is a paid training opportunity with a $500 stipend and round-trip all expenses paid, including meals and ground transportation to Houston, Texas, for the entire event. The stipend is for your attendance and completion of a work plan. Unlike prior program, this training will interact with the 2nd Year of the HBCU ALL-Stars Game Week being held during NCAA Basketball Championships. We will attend the HBCU All Stars Civil Rights and Social Justice Panel and tickets and transportation will be provided to the game on Sunday, April 2nd. There will also be assigned homework prior to the event. To receive the stipend, you must attend all sessions every day, be punctual, uphold a code of conduct, and complete all assignments. The deadline to apply is February 28th, 2023 and all applicants must be able to provide proof of full vaccinations (both shots) and at least one booster shot. | | | |
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Today, February 19th, 2023, we remember the history of felon disenfranchisement as part of a 2-part article reviewing felon disenfranchisement and the individuals affected. The Transformative Justice Coalition is committed to working with groups worldwide to combat felon disenfranchisement. Written in October of 2016, "Understanding Felon Disenfranchisement Laws & The Individuals Affected" is a two-part Transformer original article examining felon disenfranchisement. Disenfranchisement is when you deny the right to vote to a person or group, or deny the right to vote through practices or policies. In America, an estimated 6.1 million people with past felony convictions are denied the right to vote in a practice known as felon disenfranchisement.
Today's article (originally Part Two in 2016) is meant to be an informative overview of the past and current state of felon disenfranchisement in America, and around the globe. This article delves into the origins of felon disenfranchisement laws that stem from Greece; how felon disenfranchisement laws made their way to the United States in the 1600’s and evolved through the Revolutionary War; and, the exceptions and difficulties created by the 13th Amendment, the first and second sections of the 14th Amendment, and the 15th Amendment. The racist past of felon disenfranchisement is also be looked at, including: why felonies became a broad-brush political tool to disenfranchise Black voters; the origins of the American policing, and how it disproportionately affects African Americans; how Jim Crow laws came to be discriminatory disenfranchisement laws; and, how felon disenfranchisement is the lasting effect of the Jim Crow Laws.
Tomorrow's #VRABlack History article will update Part One of the 2016 article focused on 2016 felon re-enfranchisement efforts on the state (Maryland, Virginia, and California) and federal levels, as well as provides information on the often confusing process of how those with past felony convictions may restore their right to vote. Tomorrow's article hopes to clarify some of these misconceptions by exploring and explaining: individual stories of those affected by America's felon disenfranchisement laws; voting rights for individuals who are incarcerated; voting rights for the formerly incarcerated (individuals with past felony convictions); the fight to restore the vote by the states; and, the fight by Congress to restore the vote through legislation.
For purposes of this two-part article, the author uses "felon disenfranchisement" as a broad-brush term to describe the state and federal laws that affect both those currently and formerly incarcerated, unless otherwise specified. The author also knows that there are many preferred terms for individuals with past felony convictions, such as "returning citizen", "ex-felon", and other terms such as, "citizen" and "resident". For purposes of this article, the author most commonly uses the term "individuals with past felony convictions", unless citing a quote or reference that uses a different term. References will be listed at the end of the article, with all quotes or references beginning with blue, underlined words that link to the source.
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⮚ Introduction
Though every other country used to have stricter voter disenfranchisement laws than America, America now has the strictest felon disenfranchisement laws in the entire world, with 48 of the 50 states having some kind of felon disenfranchisement laws, and 2 of those states permanently banning individuals with certain past felony convictions from voting. One must wonder why a nation that is only 238 years old has the broadest range of disenfranchisement offenses in comparison to all other nations. The answer is in America’s history.
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⮚ How Felon Disenfranchisement Arrived in America
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Like most things in America, the practice of felon disenfranchisement originally came from England, and England adopted it from Greece and Rome. Greece used the word Atimia, meaning “dishonor”, as the term for their version of felon disenfranchisement laws. Atimia was much more severe than modern-day felon disenfranchisement laws, and "those subjected to atimia were unable to participate meaningfully in public life. They were prohibited from petitioning their government, voting, holding office, instituting any criminal or civil actions against citizens, fighting in the army, or receiving any sort of welfare-type public assistance.”
Atimia served as a basis for Medieval Germany’s own form of felon disenfranchisement called “outlawry”. Outlawry in Germany meant “loss of peace”, in which individuals with past convictions were stripped of more than just their right to participate in public life: they were also stripped of their land and the practice was comparable to becoming a wolf, since the outlaw, according to some early German texts, “would either be forced into exile or would be forced to live as an animal in the forests. He or she would lose all the benefits and protections that society could offer.”
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The theory behind outlawry was that “[h]e who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a ‘friendless man,’ he is a wolf.” | |
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Atimia and outlawry then served as a basis for 16th Century Europe’s own form of felon disenfranchisement, called “civil death”. Civil death was less severe than outlawry, but more severe than atimia. Civil death did not cast you out of society; however, you did lose all social rights, and “those convicted of certain crimes would have three different penalties imposed on them: forfeiture of property, corruption of the blood (relating to a prohibition on passing property to heirs through inheritance), and a loss of civil rights.”
As it is with most of our law, America got their basis for their own version of felon disenfranchisement using the old English laws. “The first disenfranchisement laws in America appeared in the 1600s, typically as punishment for morality crimes such as drunkenness, and were present from the earliest times of the Republic.” (footnotes omitted) However, these early disenfranchisement laws were not formal, and “were dependent on local circumstances”.
⮚ History of Felon Disenfranchisement in Revolutionary America
Around the time of the Revolutionary War, roughly around 1764-1776, there were many heated debates about voting, especially since the idea of a new nation was not a widely accepted view, and was often rejected, as states wanted to maintain their independence. The main issue was whether voting was a right, guaranteed to all citizens, or a privilege, “one that the state could legitimately grant or curtail in its own interest”. If voting was a natural right, then all (including slaves) in the new America should possess this right; however, if voting was made a state right, then it could potentially be too flexible, and the founding fathers had a “notion that suffrage requirements ought to be durable and difficult to change”. It is for these reasons that the Constitution of the United States of America defines and contains certain provisions for state rights, which the federal government cannot touch, and certain provisions that the federal government has control over, that applies to all states. One of the states’ rights is choosing their own voter qualification laws:
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The power of the states to establish voter qualifications is found in Article I, Section Two of the United States Constitution, which provides that “the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” States have “broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns.” The “wide scope” of power held by the states to set qualifications includes “[r]esidence requirements, age, [and] previous criminal record.” (footnotes omitted) | |
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From 1776 to 1868, a total of 29 states “adopted constitutions that disenfranchised felons or permitted their statutory disenfranchisement…by the time the Fourteenth Amendment was ratified.” Most of these early laws were derived from Thomas Hobbes’ and John Locke’s social contract theory. Their social contract theory is similar to the theory of outlawry in that offenders (criminals) who broke the “agreement or covenant by which men are said to have [humankind’s social contract]” (emphasis in original), then those offenders had “abandoned the 'state of nature' to form the society in which they now live.” (emphasis in original). Since the offenders had “abandoned society”, they “should not be allowed to participate in the process of making society’s rules”.
Much like today’s justifications, other early America’s justifications for the premise for felon disenfranchisement included: that those with felonies did not have a good enough moral compass to vote; the prevention of election fraud; and, the fear that those with past or current felony convictions would weaken laws and their enforcement by voting for laws that favored criminal activity. All of these theories were supported by early state case law. However, “these provisions were less restrictive than those of a civil death” and “[t]he duration of disenfranchisement varied, with some localities denying felons the franchise only temporarily whereas others would permanently bar felons from voting, especially if the crime was related to the administration of elections.”
1861-1865 marked the American Civil War. The Reconstruction era after the Civil War led to stricter and broader felon disenfranchisement laws. After the Civil War, Confederate states “were required to ratify the Fourteenth Amendment and bring their state laws into ‘conformity with the Constitution of the United States in all respects.’” (footnotes omitted) The 13th (1865), 14th (1868), and 15th (1870) Amendments had unintended consequences of allowing the Southern states to enact more restrictive felon disenfranchisement laws. These laws were specifically enacted to maintain Confederate White Supremacy. How did Constitutional amendments meant to enfranchise and free enslaved African Americans result in the exact opposite?
⮚ The Paradox Of The 13th, 14th, And 15th Amendments
To understand how this happened, you must first understand the amendments themselves.
The Thirteenth Amendment, enacted in 1865, banned slavery and provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (emphasis added)
The Fourteenth Amendment, passed in 1868, contains two sections. Section One, which contains the Equal Protection Clause, provides:
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No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added) | |
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Section Two of the Fourteenth Amendment discusses how state representatives are apportioned among the states, and adds a caveat that representation shall be reduced if a state disenfranchises or abridges any twenty-one-year-old male citizens, but provides an exception for disenfranchisement “for participation in rebellion, or other crime”. (emphasis added)
The Fifteenth Amendment, ratified in 1870, provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Fifteenth Amendment’s paradox will be clarified later.
The Thirteenth and Fourteenth Amendments created their paradoxes by providing an exception from voting that the Southern states noticed and used to their advantage: those convicted of a crime. For example, Alabama said in the Act of June 22, 1868 that their state constitution could never be “amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law…” (emphasis in original)
With this new class of crime, dubbed a “felony”, came a new way to disenfranchise former slaves. “Some Southern states passed laws disenfranchising those convicted of what were considered to be ‘black’ crimes, while those convicted of ‘white’ crimes did not lose their right to vote. For example, South Carolina disenfranchised criminals convicted of ‘thievery, adultery, arson, wife beating, housebreaking, and attempted rape,’ but not those convicted of murder or fighting.’” The Mississippi Supreme Court, in Ratliffe v. Beale, 20 So. 865, 868 (Miss. 1896) went as far as to describe Black people as “a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites.” As a result, Mississippi’s state constitutional convention “‘discriminated against...the offenses to which its weaker members were prone...Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not.’” In essence, African Americans were considered to lack the intelligence and smarts necessary to commit more heinous and pre-meditated crimes; while, White people were considered to be too intelligent and smart to commit the smaller crimes, but mentally capable enough to commit more vicious crimes.
The 13th, 14th, and 15th Amendments should have been able to combat these discriminatory laws, except that their own provisions rendered them near powerless during America’s Reconstruction period era. The Thirteenth Amendment unwittingly provided not just the exception of crime, but the burden of proof that disenfranchisement was a “badge of slavery”; the Equal Protect Clause of the Fourteenth Amendment was very effective, but the caveat of Section Two meant that if African Americans were convicted of crimes, they could legally be disenfranchised; and, the Fifteenth Amendment was eventually meant to require proof of laws that were “motivated by discriminatory intent”. (emphasis added) In fact, a 2003 study found that “state felony bans exploded in number during the late 1860s and 1870s, particularly in the wake of the Fifteenth Amendment, which ostensibly guaranteed black Americans the right to vote.” Adding to the paradoxes of these amendments was the Jim Crow era, which spanned from 1877 through the mid-1960’s. One cannot look at felon disenfranchisement without looking at the Jim Crow era.
⮚ The Jim Crow Era
During the mid-1800’s, there was a form of theatre in the White communities known as “blackface”. Blackface was when a White entertainer would paint his face black and portray a comedic stereotype of an African American. A man by the name of Thomas Dartmouth Rice was the most popular blackface entertainer of his day. He made a character named “Jim Crow”, who was a clumsy and lazy African- American. Thomas said he got the idea for Jim Crow from watching a slave who was sitting on the porch step, singing a song called “Jump, Jim Crow”. Thomas’ Jim Crow character wasn’t just portrayed as clumsy and lazy, but also as a buffoon, and when playing the character, Thomas often “spoke with an exaggerated and distorted imitation of African American Vernacular English.” Thomas’ Jim Crow act was so popular with the White audiences during the 1830’s-40’s that he did a national and world tour, even going to parts of Europe.
From his popular act, the name “Jim Crow” became a derogatory name to use for African Americans. Thomas died in 1860, yet his act lived on, characterizing an era of racist laws that would come to be known as the Jim Crow laws. Jim Crow laws created a racial hierarchy through segregation.
During the mid-1800’s, there was a form of theatre in the White communities known as “blackface”. Blackface was when a White entertainer would paint his face black and portray a comedic stereotype of an African American. A man by the name of Thomas Dartmouth Rice was the most popular blackface entertainer of his day. He made a character named “Jim Crow”, who was a clumsy and lazy African- American. Thomas said he got the idea for Jim Crow from watching a slave who was sitting on the porch step, singing a song called “Jump, Jim Crow”. Thomas’ Jim Crow character wasn’t just portrayed as clumsy and lazy, but also as a buffoon, and when playing the character, Thomas often “spoke with an exaggerated and distorted imitation of African American Vernacular English.” Thomas’ Jim Crow act was so popular with the White audiences during the 1830’s-40’s that he did a national and world tour, even going to parts of Europe.
From his popular act, the name “Jim Crow” became a derogatory name to use for African Americans. Thomas died in 1860, yet his act lived on, characterizing an era of racist laws that would come to be known as the Jim Crow laws. Jim Crow laws created a racial hierarchy through segregation.
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The Jim Crow system was undergirded by the following beliefs or rationalizations: whites were superior to blacks in all important ways, including but not limited to intelligence, morality, and civilized behavior; sexual relations between blacks and whites would produce a mongrel race which would destroy America; treating blacks as equals would encourage interracial sexual unions; any activity which suggested social equality encouraged interracial sexual relations; if necessary, violence must be used to keep blacks at the bottom of the racial hierarchy. | |
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Jim Crow laws were more than just segregation; they were also rules of etiquette in which African Americans were expected to follow. Below is a list of some of those most shocking national and state Jim Crow laws:
- A Black male could not offer his hand (to shake hands) with a White male because it implied being socially equal. Obviously, a Black male could not offer his hand or any other part of his body to a White woman, because he risked being accused of rape.
- Black people were not allowed to show public affection toward one another in public, especially kissing, because it offended White people.
- White people did not use courtesy titles of respect when referring to Black people, for example, Mr., Mrs., Miss., Sir, or Ma'am. Instead, Black people were called by their first names. Black people had to use courtesy titles when referring to White people, and were not allowed to call them by their first names.
- White motorists had the right-of-way at all intersections.
- No colored barber shall serve as a barber (to) White girls or women (Georgia)
- It shall be unlawful for any parent, relative, or other White person in this State, having the control or custody of any White child, by right of guardianship, natural or acquired, or otherwise, to dispose of, give or surrender such White child permanently into the custody, control, maintenance, or support, of a negro (South Carolina).
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Not only were the Jim Crow laws expected, but they were also taught by philosophers and taught at every education level, and even children’s games portrayed African Americans as inferior. It was even backed by case law, such as the 1986 Supreme Court case of Plessy v. Ferguson, which promulgated the separate but equal doctrine and effectively and formally sanctified segregation nationwide.
The Jim Crow laws were made even worse because they weren’t just limited to social life; but, to political life as well. African Americans’ “right to vote was systematically denied through use of poll taxes, grandfather clauses [at n. 47 ‘’[g]randfather clauses were considered advantageous because unlike literacy tests and polls taxes, they disenfranchised blacks but not illiterate whites’], and property tests, as well as literacy tests and intimidation.” Jim Crow laws that disenfranchised African Americans were extremely effective: “[i]n Mississippi, fewer than 9,000 of the 147,000 voting-age African Americans were registered after 1890. In Louisiana, where more than 130,000 black voters had been registered in 1896, the number had plummeted to 1,342 by 1904.”
Although the Jim Crow era formally died out in the 1960’s, many say that current felon disenfranchisement laws are a lasting effect from the Jim Crow era.
⮚ Conclusion
There is still a lot of work to be done in the restoring of the right to vote to the 6.1 million people affected by felon disenfranchisement, and to undoing years of racist felon disenfranchisement practices and years of Jim Crow laws. The Transformative Justice Coalition is committed to working with groups worldwide to combat felon disenfranchisement. To research more for yourself or to check the sources below where all the References are listed in alphabetical order.
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