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'Civil Death’: The Ideological Paradox of Criminal Disenfranchisement Law in the United States

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This Article holds that the most powerful critique of criminal disenfranchisement begins by appreciating the policy’s deep roots in American political ideology. First, the Article argues that only a combination of contractarian liberal, civic-virtue republican, and racially discriminatory ideologies explains the persistence of criminal disenfranchisement in the United States. Second, the Article shows that while liberal and republican ideas about self-government have long provided solid foundations for criminal disenfranchisement in American political thought, the goals and principles of both ideologies also undergoes powerful challenges to the practice. At the heart of this argument lies a paradox: although all three ideological traditions have contributed to the development of criminal disenfranchisement law in the United States, the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice. By analyzing the liberal, republican, and racially discriminatory approaches to criminal disenfranchisement, the article attempts to explain both the durability and the incoherence of the policy. The article finds indefinite disenfranchisement — also called “ex-offender,” “ex-felon,” or permanent disenfranchisement — to be the most egregious form of the practice, as it imposes on criminal offenders something akin to the medieval condition of “civil death.” But to a greater degree than many authors have recognized, temporary and indefinite disenfranchisement policies rest on fundamentally similar premises, and are equally vulnerable to principled challenge.
ARTICLES
“CIVIL DEATH”: THE IDEOLOGICAL PARADOX OF
CRIMINAL DISENFRANCHISEMENT LAW IN THE
UNITED STATES
ALEC C. EWALD*
INTRODUCTION
American political thought has always been characterized by
paradoxes of inclusion and exclusion. Similar inconsistencies have
existed in every democratic state. Popular governments since classical
Athens have based their legitimacy on inclusive and universalist premises,
while simultaneously barring significant minorities and even majorities of
their adult populations from self-rule. Religion, sex, property ownership,
race, literacy, political affiliation, and slave or servant status have—in
different lands at different times—served to define the boundaries of the
body politic, especially in regard to participation in the electoral
franchise. Though easily condemned in the cool light of history, such
restrictions have appeared eminently reasonable to those who enacted
them.
In the United States, only one major restriction of the voting rights of
adult citizens survives—the disenfranchisement of criminal offenders.
However, despite new interest in criminal disenfranchisement generated
** Ph.D. student, University of Massachusetts Amherst, Department of Political
Science; B.A 1992, Tufts University; M.A. 2000, University of North Carolina at Chapel
Hill. I would like to thank Michael Lienesch, Susan Bickford, Melissa Saunders, and
Maxine Eichner for their early and unflagging support. I am also grateful to many others
for contributions and criticisms, particularly Marc Mauer, Nora Demleitner, John
Brigham, Jerry Mileur, Dean Robinson, Barbara Morgan, Peter Wagner, Ian Finseth, Avital
Rosenberg, Mark Graber, and the editors of this Review.
2 WISCONSIN LAW REVIEW
by the presidential election of 2000,1 many Americans remain unaware of
the policy’s extensive effects on the electorate. About four million U.S.
adults are now barred from voting because of a criminal conviction, the
majority of whom are not incarcerated, and more than one million of
whom have completed their sentences.2 In thirteen states, many criminal
offenders are denied the right to vote even after they have completed their
terms of incarceration, probation, and parole.3 The United States is the
only democracy that indefinitely bars so many offenders from voting, and
it may be the only country with such sweeping disenfranchisement
policies.4
1. Some of this increased attention has come as a result of Florida’s role in that
election. While only 537 votes decided the presidential election in the state, hundreds of
thousands of non-incarcerated Floridians are prohibited from voting because of a felony
conviction. See infra note 25 and accompanying text. Moreover, a flawed attempt to
correct voter rolls prior to the election apparently led the state to bar many non-felons
from the polls in November of 2000. See Terry Carter, Cell Block to Voting Bloc?, ABA
J., Oct. 2002, at 16; Sasha Abramsky, A Growing Gap in American Democracy, N.Y.
TIMES, July 27, 2002, at A11; Bob Herbert, Keep Them Out!, N.Y. TIMES, Dec. 7, 2000, at
A39; Alpharetta Firm Accused in Florida Voting Rights Suit, ATLANTA CONST., Jan. 11,
2001, at A3; Black Voters in Florida Deserve Some Real Answers, USA TODAY, Jan. 11,
2001, at 14A; see also John Mark Hansen, Task Force on the Federal Election System:
Disfranchisement of Felons, in TO ASSURE PRIDE AND CONFIDENCE IN THE ELECTORAL
PROCESS: TASK FORCE REPORTS TO ACCOMPANY THE REPORT OF THE NATIONAL
COMMISSION ON ELECTION REFORM ch. 8 (2001) (discussing the repeal of laws
disenfranchising ex-felons); Felons Lose Bid to Alter Vote Ban, MIAMI HERALD, July 19,
2002, at 1B (noting that despite the ban on voting by ex-felons, “more than 1,200 felons
cast ballots in that election, according to a Herald analysis”). A muckraking journalist’s
account of how Florida “fixed the vote” is in GREG PALAST, THE BEST DEMOCRACY
MONEY CAN BUY 6-43 (2002). For a critical response to Palast by former Florida
Secretary of State Katherine Harris, see Katherine Harris, A Florida Makeover, HARPERS
MAG., July 2002, at 4. A suit by Florida ex-felons and civil-rights groups challenging the
state’s felon-disenfranchisement law has not succeeded to date. See Johnson v. Bush, 214
F. Supp. 2d 1333 (S.D. Fla. 2002).
After years of silence on the issue, President Clinton used a farewell op-ed to argue
that “it is long past time to give back the right to vote to ex-offenders who have paid their
debts to society.” William Jefferson Clinton, Erasing America’s Color Lines, N.Y. TIMES,
Jan. 14, 2001, at 17.
2.See JAMIE FELLNER & MARC MAUER, HUMAN RIGHTS WATCH & THE
SENTENCING PROJECT, LOSING THE VOTE: THE IMPACT OF FELONY
DISENFRANCHISEMENT LAWS IN THE UNITED STATES 1 (1998). The Human Rights Watch
and The Sentencing Project (HRW/TSP) study is the most comprehensive survey of U.S.
criminal disenfranchisement law to date. The HRW/TSP study estimated that about 3.9
million people are temporarily or permanently disenfranchised, of whom “over one
million” have completed their sentences. Id.; see also Andrew L. Shapiro, Note,
Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy,
103 YALE L.J. 537 (1993). Shapiro estimated in 1993 that counting both those currently
under sentence and those who have served their time, about 4.1 million Americans were
denied the right to vote either temporarily or permanently because of their status as
criminal offenders or ex-offenders. Id. at 540 n.17. Shapiro estimated that, in addition to
those who completed all aspects of their sentences, approximately two million were denied
the vote who were not incarcerated, but remained on probation or parole in states which
2002:1045 “Civil Death 3
Previous scholarship on criminal disenfranchisement has faulted the
practice on equal-protection or other constitutional grounds,5 focused on
its racial dimension,6 analyzed it in comparative perspective,7 attacked its
symbolic character,8 or evaluated prospects for change in light of recent
developments in U.S. legislatures and courts.9 Very few authors,
meanwhile, have developed principled defenses of the policy.10
This Article holds that the most powerful critique of criminal
disenfranchisement begins by appreciating the policy’s deep roots in
American political ideology. First, this Article argues that only a
combination of contractarian liberal, civic-virtue republican, and racially
deny the vote to those in that condition. Id. The British magazine The Economist recently
reported a new study finding that “4.7[ million] Americans or 2.3 percent of the voting
population have lost their rights.” Prison and Beyond: A Stigma That Never Fades, THE
ECONOMIST, Aug. 10, 2002, at 26.
3.See infra note 23 (listing states which disenfranchise incarcerated convicts
and ex-offenders).
4. FELLNER & MAUER, supra note 2, at 18. We do not have a comprehensive
comparative study of offender disenfranchisement laws, but evidence strongly suggests
that no other democracy disenfranchises indefinitely criminals who have not committed
voting-specific infractions. In a 1999 decision protecting South African inmates’ right to
vote, the South African Constitutional Court noted that “in Denmark, Ireland, Israel,
Sweden, and Switzerland, all prisoners can vote.” August v. Electoral Comm’n, 1999 (3)
SALR 1, 15 n.30 (CC) (S. Afr.). An Israeli elections website notes that forty-two polling
stations were set up in “prisons and detention centers” for the 1999 parliamentary
elections. See Elections for the 15th Knesset, at http://
www.knesset.gov.il/elections/eindex.html (last visited Dec. 12, 2002). South Africa’s
legislature restricted prisoners’ voting rights in the following year. See § 93 of Local
Government: Municipal Electoral Act 27 of 2000 (JSRSA) (S. Afr.); e-mail from Luyanda
Tyibilika, Department of Correctional Services, South Africa (Aug. 16, 2002) (on file with
author). Tyibilika wrote that “it is our interpretation that all detained prisoners . . . will
effectively in future be prevented from voting (since 11 July 2000 when the amendment
came into operation.)” Id; see also Glenda Flick, Constitutional Law, in ANNUAL SURVEY
OF SOUTH AFRICAN LAW 2000, at 2 (JUTA Law ed., 2000).
Countries such as France, Germany, and Greece, meanwhile, disqualify only some
classes of incarcerated offenders from voting, and countries including Australia, Canada,
New Zealand, and Sri Lanka, limit the voting rights only of those serving sentences of a
specified length. See August, 1999 (3) SALR at 15 n.30. Another authority shows that in
Germany, post-sentence disenfranchisement is never automatic, may only be applied by
the sentencing judge for certain serious infractions, and can last only two to five years
following incarceration. Nora V. Demleitner, Continuing Payment on One’s Debt to
Society: The German Model of Felon Disenfranchisement as an Alternative, 84 MINN. L.
REV. 753, 760-61 (2000). Moreover, German law requires the government to facilitate
voting by eligible inmates. See FELLNER & MAUER, supra note 2, at 18. Canadian courts
have struck down laws disenfranchising incarcerated offenders despite the legislature’s
revision of the laws to cover only certain serious crimes. Canadian prisoner-voting law
currently varies among provinces, but the Canadian Supreme Court in October 2002 ruled
that federal law disenfranchising prisoners violates the Canadian Charter of Rights and
Freedoms and must be struck down. See Sauvé v. Canada, 2002 SCC 68 (Oct. 31, 2002),
available at http://www.lexum.umontreal.ca/csc-scc/ en/rec/html/sauve2.en.html. This
ruling is the latest in a decade-long struggle. See Sauvé v. Canada (Attorney Gen.), [1992]
7 O.R.3d 481 (Can.); Belczowski v. Canada, [1992] 2 F.C. 440 (Can.); see also
4 WISCONSIN LAW REVIEW
discriminatory ideologies explains the persistence of criminal
disenfranchisement in the United States.11 Second, this Article shows that
while liberal and republican ideas about self-government have long
provided solid foundations for criminal disenfranchisement in American
political thought, the goals and principles of both ideologies also
undergird powerful challenges to the practice.12 At the heart of this
argument lies a paradox: although all three ideological traditions have
contributed to the development of criminal disenfranchisement law in the
United States, the modern commitments of both liberalism and
republicanism should lead Americans to abandon the practice. By
analyzing the liberal, republican, and racially discriminatory approaches
Christopher P. Manfredi, Judicial Review and Criminal Disenfranchisement in the United
States and Canada, 60 REV. POL. 277, 281-84 (summarizing Canadian decisions). Not all
prisoner voting can be interpreted as a sign of a democratic or rights-protecting regime.
Prisoners in Pakistan were permitted to vote in a 2002 referendum, but human-rights
groups accuse the government of coercing inmates to vote for General Musharraf in order
to inflate turnout rates. See Editorial, Eyewash in Pakistan, BALT. SUN, May 2, 2002, at
18A (arguing that prisoners were “rounded up to vote”); Rights Body Casts Doubts on
Credibility of Result, GULF NEWS, May 2, 2002, available at LEXIS, Asia Africa
Intelligence Wire (quoting a report by the Human Rights Commission of Pakistan
referring to “captive voters like . . . state employees and prisoners who were obliged to
participate”).
5.See, e.g., Elizabeth Du Fresne & William Du Fresne, The Case for Allowing
“Convicted Mafiosi to Vote for Judges”: Beyond Green v. Board of Elections of New York
City, 19 DEPAUL L. REV. 112 (1969); Howard Itzkowitz & Lauren Oldak, Note, Restoring
the Ex-Offender’s Right to Vote: Background and Developments, 11 AM. CRIM. L. REV.
721 (1972); Gary L. Reback, Note, Disenfranchisement of Ex-Felons: A Reassessment, 25
STAN. L. REV. 845 (1973); Note, The Equal Protection Clause as a Limitation on the
States’ Power to Disenfranchise Those Convicted of a Crime, 21 RUTGERS L. REV. 297
(1967); Douglas R. Tims, Comment, The Disenfranchisement of Ex-Felons: A Cruelly
Excessive Punishment, 7 SW. U. L. REV. 124 (1975).
6.See, e.g., George P. Fletcher, Disenfranchisement as Punishment: Reflections
on the Racial Uses of Infamia, 46 UCLA L. REV. 1895 (1999); Virginia E. Hench, The
Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 CASE W.
RES. L. REV. 727 (1998); Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and
Its Influence on the Black Vote: The Need for a Second Look, 142 U. PA. L. REV. 1145
(1994); Shapiro, supra note 2.
7.See generally Demleitner, supra note 4 (comparing U.S. and German
criminal disenfranchisement policies).
8.See generally Note, The Disenfranchisement of Ex-Felons: Citizenship,
Criminality, and “The Purity of the Ballot Box,” 102 HARV. L. REV. 1300 (1989).
9.See generally One Person, No Vote: The Laws of Felon Disenfranchisement,
in Developments in the Law—The Law of Prisons, 115 HARV. L. REV. 1838, 1939 (2002).
10 .See Roger Clegg, Who Should Vote?, 6 TEX. REV. L. & POL. 159, 172 (2001)
(grounding the case for indefinite disenfranchisement on the belief that voting is a
“privilege” reserved for “trustworthy, good citizens”); Manfredi, supra note 4, at 277
(resting a “principled defense” of criminal disenfranchisement on “the relationship among
citizenship, civic virtue, and punishment”); see also Jesse Furman, Note, Political
Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian
Justice, 106 YALE L.J. 1197 (1997). Furman condemns criminal disenfranchisement, but
offers a theoretically-rich connection of the practice to the work of philosopher John
2002:1045 “Civil Death 5
to criminal disenfranchisement, this Article explains both the durability
and the incoherence of the policy. This Article finds indefinite
disenfranchisement—also called “ex-offender,” “ex-felon,” or permanent
disenfranchisement—to be the most egregious form of the practice, as it
imposes on criminal offenders something akin to the medieval condition
of “civil death.”13 But to a greater degree than many authors have
recognized, temporary and indefinite disenfranchisement policies rest on
fundamentally similar premises, and are equally vulnerable to principled
challenge.14
This Article uses the term “liberalism” to refer to an individualistic
and rights-oriented view of politics, in which the central purpose of the
Rawls. See infra text accompanying note 148.
11 . This Article seeks to apply the “multiple traditions” approach developed by
political scientist Rogers M. Smith. Rather than drawing bright lines between republican
and liberal influences and depicting them as mutually exclusive political paradigms, Smith
finds that American citizenship laws are best understood as “none too coherent
compromises” and combinations of “rival views of civic identity that are themselves filled
with understandable internal tensions.” ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING
VISIONS OF CITIZENSHIP IN U.S. HISTORY 6, 30 (1997) [hereinafter CIVIC IDEALS].
Meanwhile, Smith argues that while liberal and republican ideologies have played crucial
roles in American political thought, what he calls “inegalitarian ascriptive Americanist
traditions”—hierarchies discriminating on the basis of immutable characteristics such as
gender, race, ethnicity, and sexual orientation—have also shaped American views of
citizenship and political identity. Id. at 508 n.5. As Smith writes, “[t]hese liberal,
republican, and inegalitarian ascriptive traditions are analytically distinguishable and in
some respects logically inconsistent, but . . . most American political actors have
nonetheless advanced outlooks combining elements of all three.” Id. This is the case with
criminal disenfranchisement law.
Smith employs the term “traditions” in order to examine not only ideas but “whole
political cultures,” the “institutions and practices embodying and reproducing” those ideas.
Id. at 30, 507 n.5; see also Rogers M. Smith, Beyond Tocqueville, Myrdal, and Hartz: The
Multiple Traditions in America, 87 AM. POL. SCI. REV. 549, 549 (1993).
12 . The liberal and republican approaches to self-government are not exclusive.
Most Americans blend the two in their political thought, and many authorities draw freely
from both traditions in their discussions of disenfranchisement. Distinguishing the two,
however, enables us to perceive discrete claims for and against the policy most clearly.
Other critics have pointed out the weaknesses in the liberal and republican defenses
of lifetime disenfranchisement laws. See, e.g., Harvey, supra note 6, at 1169-73; Note,
supra note 8, at 1304-09. A Harvard Law Review note concludes that these traditions
merely “accompan[y]” the practice and ultimately cannot “account for the origin or the
persistence” of lifetime criminal disenfranchisement in the United States. See Note, supra
note 8, at 1310. This Article does not contend, of course, that political philosophy alone
explains political behavior. But this Article finds that criminal disenfranchisement in the
United States is deeply embedded in the liberal, republican, and racially discriminatory
traditions, which have long structured the way in which Americans understand the
practice. See ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 207
(1981) (arguing that “the history of a practice in our time is generally and
characteristically embedded in and made intelligible in terms of the larger and longer
history of the tradition through which the practice in its present form was conveyed to
us”). Critics of disenfranchisement, this Article argues, should not minimize the effects of
these ideological roots, since they may gain more by attending to the liberal and
republican cases for disenfranchisement and refuting them on their own terms.
6 WISCONSIN LAW REVIEW
state is to preserve as much latitude as possible for individuals to choose
their own ends. While there is great variation within the liberal tradition,
liberal ideology tends to depict the rules of society as a neutral “contract”
to which rational individuals agree; political activity is regarded as
instrumental, a way of pursuing one’s private interests.15 By contrast,
republicans tend to view democratic citizens not as atomistic, isolated
individuals, but as a body held together by common interest—as “a single
organic piece . . . with a unitary concern that [is] the only legitimate
objective of government[] policy.”16 Political activity, from this
perspective, is understood as public conduct aimed at the good of the
whole. Republican thought emphasizes the need for particular civic
13 . The term “civil death” refers to the condition in which a convicted offender
loses all political, civil, and legal rights. See infra notes 44-46 and accompanying text for
an account of the medieval origins of the penalty. Civil death provisions have survived in
American law. See Kathleen M. Olivares et al., The Collateral Consequences of a Felony
Conviction: A National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION 10,
13, 16 n.1 (1996) (showing that as late as 1996, four American states imposed civil death
on some serious offenders).
14 . Theorists contest the content of every ideological tradition. See
MACINTYRE, supra note 12, at 207 (referring to a “living tradition” as “an historically
extended, socially embodied argument, and an argument precisely in part about the goods
which constitute that tradition”). Another authority has described a legal tradition as “a
vital, dynamic, ongoing system.” MARY ANN GLENDON ET AL., COMPARATIVE LEGAL
TRADITIONS 17 (2d ed., 1994). This Article’s premise is that ideological traditions are
dynamic as well. Older elements of political ideologies may remain available and
influential long after the scales within those traditions have tilted against them, and
important policies ought to be consistent with the modern principles of those ideologies.
Scholars in various disciplines have engaged in a rich debate over how to understand
the concept of “ideology.” As political scientist Stuart Scheingold argues, ideology can
portray how people do think about political problems, but can also be used to argue what
we ought to do; it “combines normative, descriptive, and hortatory elements.” STUART A.
SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL
CHANGE 14 n.2 (1974). Scheingold, like others, notes the influence of anthropologist
Clifford Geertz. See id. Geertz holds that ideologies are “symbolic framework[s] in terms
of which to formulate, think about, and react to political problems,” and “maps of
problematic social reality and matrices for the creation of collective conscience.” Clifford
Geertz, Ideology as a Cultural System, in IDEOLOGY AND DISCONTENT 47, 64-65 (David
E. Apter ed., 1964). Similarly, Charles W. Mills argues that ideology can become “a
normative tool, a conceptual device to elicit our intuitions about justice.” CHARLES W.
MILLS, THE RACIAL CONTRACT 5 (1997). Historian Joyce Appleby notes that republican
accounts of the American founding have conceived ideology as “the dynamic interplay of
belief and behavior,” a concept which could effectively tap “that structuring of
consciousness which shapes identity and channels emotions.” JOYCE APPLEBY,
LIBERALISM AND REPUBLICANISM IN THE HISTORICAL IMAGINATION 19-20, 279 (1992).
Others, however, contend that ideologies are derived from our practices: “political
activity comes first and a political ideology follows after,” as Michael Oakeshott puts it.
MICHAEL OAKESHOTT, POLITICAL EDUCATION 14 (1951). Oakeshott writes that instead of
being “the quasi-divine parent of political activity, [ideology] turns out to be its earthly
stepchild.” Id. Douglas Hay argues that an ideological system “combine[s] imagery and
force, ideals and practice,” and draws its strength from our mistaken belief that it is a
“product of [our] own minds and [our] own experience.” Douglas Hay, Property,
Authority, and the Criminal Law, in DOUGLAS HAY ET AL., ALBIONS FATAL TREE 26, 55
2002:1045 “Civil Death 7
virtues, political activity’s formative effects on the citizen, and the
delicacy of the democratic polity: its dependence on the people is the
source of a republic’s greatness, but also makes it “a fragile beauty
indeed.”17
If these “contractual” and “communal” strains in American political
thought are well-known, it is less common to view racial discrimination
as possessing the attributes of a central political tradition in the United
States. However, a number of scholars argue that ascriptive
discrimination has long been rationally, overtly articulated and embodied
in American law—indeed, “that intellectual and political traditions
conceiving of America in inegalitarian racial, patriarchal, and religious
(1975). Barbara Jeanne Fields has written that ideology is the “interpretation in thought of
the social relations through which [people] constantly create and re-create their collective
being.” Barbara Jeanne Fields, Slavery, Race and Ideology in the United States of
America, 181 NEW LEFT REV. 95, 110 (1990).
15 .See CIVIC IDEALS, supra note 11, at 37, 507 n.5. The Anglo-American line
of theory which runs from John Locke through John Stuart Mill and on to contemporary
thinkers such as John Rawls and Robert Nozick is commonly identified as “liberal.” See
generally JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. Macpherson ed.,
Hackett Publ’g Co., Inc. 1980) (1690); JOHN STUART MILL, UTILITARIANISM: ON
LIBERTY, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT, REMARKS ON
BENTHAMS PHILOSOPHY 324 (Geraint Williams ed., Everyman, 1993) (1861); ROBERT
NOZICK, ANARCHY, STATE, AND UTOPIA (1974); JOHN RAWLS, A THEORY OF JUSTICE
(1971). This Article does not use the term “liberal,” then, as it is commonly used in
popular American politics today, to mean the opposite of “conservative.” For analysis of
the power of liberalism in American political thought, see LOUIS HARTZ, THE LIBERAL
TRADITION IN AMERICA 3, 5-12 (1955). For further discussion of liberal ideology, see
infra Part II.A.
16 . GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787,
at 55, 58 (1969).
17 .Id. at 66; see also CIVIC IDEALS, supra note 11, at 507-08 n.5; WOOD, supra
note 16, at 92, 123. For republican accounts of the American founding, see generally
WOOD, supra note 16, and BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE
AMERICAN REVOLUTION (1967). Some modern republican theorists prefer the term
“communitarian.” See, e.g., AMITAI ETZIONI, THE SPIRIT OF COMMUNITY: RIGHTS,
RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA 2 (1993) (outlining the
“Communitarian Thesis”). Influential contemporary republican texts include: BENJAMIN
R. BARBER, THE DEATH OF COMMUNAL LIBERTY: A HISTORY OF FREEDOM IN A SWISS
MOUNTAIN CANTON (1974); MACINTYRE, supra note 12; J.G.A. POCOCK, THE
MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC
REPUBLICAN TRADITION (1975); MICHAEL J. SANDEL, DEMOCRACYS DISCONTENT:
AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996) [hereinafter DEMOCRACYS
DISCONTENT]; and MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
In law, see MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL
DISCOURSE (1991); CASS SUNSTEIN, THE PARTIAL CONSTITUTION (1993) [hereinafter THE
PARTIAL CONSTITUTION]; Frank I. Michelman, The Supreme Court 1985 Term—
Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 23 (1986) [hereinafter
Traces of Self-Government] (arguing that, while it has become somewhat “disguised and
twisted,” the republican tradition “retains a strong . . . hold on American constitutional
imagination”); Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L.
REV 29, 31 (1985) [hereinafter Interest Groups] (arguing that the republican conception of
8 WISCONSIN LAW REVIEW
terms [have] long been as much a part of American life as the liberal and
republican doctrines that scholars stressed.”18 Inegalitarian ascriptive
ideologies, Rogers M. Smith writes, “always have the potential to support
exclusionary . . . citizenship policies.”19 Criminal disenfranchisement is
one such policy, and the history of such laws shows clearly that racially
discriminatory ideas have been integral to their development in the United
States.
Part I of this Article outlines current state laws barring criminal
offenders from voting and offers a brief history of criminal
disenfranchisement in ancient and medieval Europe and the United States.
Part II explains the ideological foundations of criminal
disenfranchisement, drawing on the work of jurists and political theorists
to illuminate the liberal, republican, and racially discriminatory arguments
for such policies. For liberals, serious crimes are violations of the social
contract, infractions which merit the forced removal of offenders from
participation in self-government. Some liberal commentators today
contend that criminals, like others, will act instrumentally in the voting
politics “has both powerful historical roots and considerable contemporary appeal”). For
one thorough listing of contemporary republican texts in history, social and political
theory, and American constitutionalism, see Frank Michelman, Law’s Republic, 97 YALE
L.J 1493, 1494 nn.3-5 (1988) [hereinafter Law’s Republic]. For insightful samples of the
rich debate among historians over how to understand the republican “revival,” see
APPLEBY, supra note 14, and Daniel T. Rodgers, Republicanism: the Career of a Concept,
79 J. AM. HIST. 11 (1992). For further discussion of republican ideology, see infra Part
II.B.
18 . CIVIC IDEALS, supra note 11, at 3. Smith further writes,
[a]dherents of what I term inegalitarian ascriptive Americanist traditions
believe that ‘true’ Americans are ‘chosen’ by God, history, or nature to possess
superior moral and intellectual traits associated with their race, ethnicity,
religion, gender, and sexual orientation. Hence many ascriptive Americanists
have believed that nonwhites, women, and various others should be governed
as subjects or second-class citizens, not as equals, denied full individual rights,
including many property rights, and sometimes excluded from the nation
altogether.
Id. at 508. Smith rejects the conventional view, which is that America’s “universalist
ideological character” has meant that membership in the American civic community has
not been limited by “national, linguistic, religious, or ethnic background,” and has been
“open to anyone who willed to become an American.” Philip Gleason, American Identity
and Americanization, in CONCEPTS OF ETHNICITY 57, 62 (William Petersen et al. eds.,
1982). Acknowledging early ethnic biases, Gleason writes that such exclusiveness “ran
contrary to the logic of the defining principles.” Id. at 63.
Influential recent texts placing racial thought at the center of American political
development include ERIC FONER, THE STORY OF AMERICAN FREEDOM (1998); GARY
GERSTLE, AMERICAN CRUCIBLE: RACE AND NATION IN THE TWENTIETH CENTURY (2001);
DESMOND KING, SEPARATE AND UNEQUAL: BLACK AMERICANS AND THE U.S. FEDERAL
GOVERNMENT (1995); PHILIP A. KLINKNER with ROGERS M. SMITH, THE UNSTEADY
MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA (1999); and MICHAEL
LIND, THE NEXT AMERICAN NATION: THE NEW NATIONALISM AND THE FOURTH
AMERICAN REVOLUTION (1995).
19 . CIVIC IDEALS, supra note 11, at 508 n.5.
2002:1045 “Civil Death 9
booth, and may use the ballot to advance the interests of lawbreakers. For
their part, republican thinkers view convicts as lacking the political virtue
required to participate in lawmaking. Offenders flawed character
constitutes a real threat, in the republican view, to the health of the body
politic; barring them from the franchise will protect the public good and
express our reverence for politics. Overtly racist ideology, which was
deployed directly in support of criminal disenfranchisement law at the end
of the nineteenth century, sought to tailor such provisions to remove black
offenders, more than whites, from the franchise. Today, meanwhile, the
penalty of disenfranchisement is falling most heavily on the African
American population: nationwide, approximately thirteen percent of the
black male population is disenfranchised because of a criminal conviction
—a rate seven times the national average.20
Part III explains the reasons why both liberals and republicans
should move to abolish criminal disenfranchisement.21 Liberals should
only choose to deprive citizens of a fundamental right when a practical,
essential government purpose compels them to do so, and their belief in
neutrality in politics and proportionality in punishment should also spur
liberals to reject disenfranchisement. Republicans’ trust in the formative
nature of political activity, meanwhile, should make them profoundly
skeptical of disenfranchisement’s efficacy, and the silent, automatic way
in which the policy is applied today renders it incapable of “expressing”
what republicans may want it to. Meanwhile, adherents of both
ideologies should be troubled by the racially discriminatory dimensions of
such laws, embodied in both their history and their ongoing effects.
Criminal disenfranchisement policy in the United States is located
squarely at the intersection of voting rights and criminal justice—and it is
tainted by the racial history of both policy areas in the United States.
Despite its roots in liberal and republican ideologies, this Article
concludes, criminal disenfranchisement runs contrary to the essential
commitments of modern American political thought.
I. CRIMINAL DISENFRANCHISEMENT LAW PAST AND PRESENT
20 . FELLNER & MAUER, supra note 2, at 8. In Florida and Alabama, almost one-
third of black men are now indefinitely disenfranchised. Id.; see also Civic Participation
and Rehabilitation Act of 1999: Hearing on H.R. 906 Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 106th Cong. 5-6 (1999). For further
statistics on criminal disenfranchisement’s racial impacts, see infra note 186 and
accompanying text.
21 . While this Article does not develop a new strategy for challenging criminal
disenfranchisement in court, judicial evaluation of such laws should consider the kinds of
arguments advanced here. See Harvey, supra note 6, at 1159 n.85 (arguing that “general
arguments against felon disenfranchisement should play a persuasive role” in court
challenges, because courts have occasionally given “great deference to broad-based
persuasive arguments”).
10 WISCONSIN LAW REVIEW
A. The State of Current Law
State disenfranchisement policies vary so widely that the Department
of Justice has described current law as “a national crazy-quilt of
disqualifications and restoration procedures.”22 Thirteen states
disenfranchise some offenders during every stage of their sentence and
indefinitely thereafter; fifteen disenfranchise during incarceration,
probation, and parole; four bar the vote during incarceration and parole,
but not probation; sixteen states and the District of Columbia bar
offenders from voting only during incarceration; and two states do not
strip voting rights from convicts.23 Approximately three-fourths of
22 . MARGARET COLGATE LOVE & SUSAN M. KUZMA, U.S. DEPT OF JUSTICE,
CIVIL DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE SURVEY 1 (1996). As
another authority puts it, state laws disenfranchising criminals “are so diverse that they are
difficult to categorize.” Walter Matthews Grant et al., Special Project, The Collateral
Consequences of a Criminal Conviction, 23 VAND. L. REV. 929, 975 (1970).
23 . Eight states provide for automatic, indefinite disenfranchisement of first-time
felons: Alabama, Florida, Iowa, Kentucky, Mississippi, Nevada, Virginia, and Wyoming.
See The Sentencing Project, Felony Disenfranchisement Laws in the United States, at
http://www.sentencingproject.org/brief/pub1046.pdf (Apr. 2002). Those convicted of a
second felony in Arizona and Maryland are subject to indefinite disenfranchisement. Id.
As of January 1, 2003, Maryland will automatically restore voting rights to non-violent
offenders three years after completion of sentence. See John Biemer, Bill to Give Repeat
Felons the Right to Vote Passes Senate Hurdle, March 29, 2000, LEXIS, AP State & Local
Wire. Tennessee and Washington remove voting rights indefinitely from those convicted
prior to 1986 and 1984, respectively. See supra The Sentencing Project. Delaware does
not permit ex-felons to vote for five years after the completion of their sentences; those
convicted of certain enumerated offenses, including murder, manslaughter, and sexual
crimes, are not eligible for restoration. Id. The states which bar voting during
incarceration, probation, and parole are Alaska, Arkansas, Georgia, Minnesota, Missouri,
Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, Rhode Island, South
Carolina, Texas, West Virginia, and Wisconsin. Id. Those which remove voting rights
from offenders in prison and on parole, but not on probation, are California, Colorado,
Connecticut, and New York. Those barring voting only during incarceration are
California, the District of Columbia, Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana,
Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon,
Pennsylvania, South Dakota, and Utah. Id. Convicts do not automatically lose their right
to vote in Maine and Vermont, though the latter does remove voting rights from those
convicted of election-related offenses. VT. CONST. Ch. II, § 51. Some state constitutions
merely allow legislative restriction of offenders’ voting rights, and actual practices do not
necessarily align with statutory declarations. Indeed, the U.S. Department of Justice found
in 1992 that “in a number of jurisdictions there was no general agreement as to how the
law [regarding civil disabilities of convicted felons] should be interpreted and applied, and
that the law in any event was continually being amended and/or reinterpreted.”
MARGARET C. LOVE ET AL., U.S. DEPT OF JUSTICE, CIVIL DISABILITIES OF CONVICTED
FELONS: A STATE-BY-STATE SURVEY, at Disclaimer (1992). Two decades earlier, the
California Supreme Court found that former felons’ voting rights effectively depended on
which county they lived in and on the decisions of county registrars, who alone chose
whether or not to register them. See Ramirez v. Brown, 507 P.2d 1345, 1347 n.2 (Cal.
1973) (finding that “[o]nly those who wish to vote and who live in counties which refuse
to register them” were relevant to a challenge to the permanent disenfranchisement of
criminals then before the court). Current data from The Sentencing Project are supported
2002:1045 “Civil Death 11
disqualified voters are no longer in prison, but are on probation or parole
or have completed their sentences entirely.24 Several states disenfranchise
over one-hundred-thousand ex-offenders. For example, as of 1998, over
six-hundred-thousand Floridians had lost their voting rights as the result
of a criminal conviction—more than four-hundred-thousand of whom had
completed their sentences.25 Each indefinite-disenfranchisement state
establishes some procedure by which ex-convicts may petition to regain
the right to vote, but restoration procedures often make regaining the vote
“extremely difficult,”26 in some cases purposely so.27 Relatively few
by scholarly summaries of state constitutional provisions and statutes disenfranchising
criminal offenders. See, e.g., LOVE & KUZMA, supra note 22 (describing state law as of
1996); Du Fresne & Du Fresne, supra note 5, at 115 nn.14-16, 116 n.17 (listing states
disenfranchising no offenders, disqualifying felons only, disqualifying those convicted of
“infamous crime,” disqualifying those convicted of specified crimes, and disqualifying
those convicted of a combination of general and specific offenses, respectively, as of
1967); Hench, supra note 6, at 790-98 (listing constitutional and statutory
disenfranchisement provisions as of 1998); Harvey, supra note 6, at 1146 n.6 (listing
constitutional disenfranchising provisions as of 1994); Itzkowitz & Oldak, supra note 5, at
758-765 (listing duration of disenfranchisement and crimes which resulted in the sanction
in each state as of 1973); Id. at 766-70 (listing constitutional and statutory provisions of
each state as of 1973); Shapiro, supra note 2, at 538-40 nn.14-16 (listing constitutional
and statutory provisions of states which did not disenfranchise offenders, disenfranchised
only those under sentence, and disenfranchised many ex-offenders, respectively, as of
1993); see also Patricia Allard & Marc Mauer, The Sentencing Project, Regaining the
Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws, at
http://www.sentencingproject.com/pubs/regainvote.pdf (Jan. 2002) (summarizing
significant state and federal legal activity regarding criminal disenfranchisement law in
1999 and 2000). For a more comprehensive analysis of recent activity concerning
criminal disenfranchisement in state legislatures and federal courts, see One Person, No
Vote, supra note 9, at 1942-1957.
24 .See FELLNER & MAUER, supra note 2, at 8.
25 .Id. at 7-8. Other states disenfranchising over 100,000 ex-offenders as of
1998 were Alabama, Mississippi, Texas, and Virginia. Id. at 8. Florida Governor Jeb
Bush has questioned the results of the HRW/TSP study. See Jeb Bush, In Florida, Ex-
Felons Can Regain the Right to Vote, SARASOTA HERALD TRIB., Jan. 12, 2001, at A14.
However, a second comprehensive analysis estimated that 524,816 ex-felons are
disenfranchised in Florida—a higher number than that found by the HRW/TSP study. See
Christopher Uggen & Jeff Manza, The Political Consequences of Felon Disfranchisement
Laws in the United States, Paper Presented at the Annual Meetings of the American
Sociological Association (Aug. 16, 2000), at 36 (on file with author).
26 . Brian J. Hancock, The Voting Rights of Convicted Felons, 17 J. ELECTION
ADMIN. 35, 39 (1996).
27 . In Alabama, convicts must submit blood or saliva containing DNA to obtain
the restoration of voting rights. Jesse Katz, For Many Ex-cons, Voting Ban Can Be For
Life, L.A. TIMES, Apr. 2, 2000, at A1. Just four laboratories in the state participate in the
program; DNA testing at one of the labs is conducted just one day a month, for one hour.
Id. Asked about this burdensome procedure, Alabama state representative Bob McKee
said, “[w]hy not put that criminal through a little more grief and make him jump through a
hoop or two? . . . If he’s really serious and wants to get back into society, then I’d like to
12 WISCONSIN LAW REVIEW
former felons take the necessary steps—which range from administrative
procedures to a full pardon—and successfully regain the right to vote.28
The diversity among state laws has confusing effects. An ex-felon
may vote in one state, but his former cellmate may not in a neighboring
state; an ex-convict who moves across state lines may gain or lose the
right to vote. The federal voting rights of former felons, therefore,
depend “solely on where a person lives,”29 as a recent bill before the U.S.
Congress put it. Moreover, most crimes punished by disenfranchisement
are not related to voting or to the electoral process.30 Meanwhile, even
the commonly-used term “felon disenfranchisement” is not entirely
see him show a little initiative.” Id. In Mississippi, restoration of voting rights occurs
only after two-thirds votes in both houses of the legislature or full pardon by the governor.
LOVE & KUZMA, supra note 22, at 81. Nevada convicts need to wait five years to regain
voting rights, but a letter sent to them about the waiting period instructs them to wait ten
years. See Allard & Mauer, supra note 23, at 8. Felons who move to Virginia from one of
the two states where felons retain the right to vote must wait five or seven years to vote,
while those barred from voting while incarcerated may register immediately. See Allard &
Mauer, supra note 23, at 10. Virginia drug offenders must wait at least seven years after
completion of their sentences before petitioning to regain the vote, while others need wait
only five. See http://www.commonwealth.state.va.us/Restore.doc (explaining the Virginia
Governor’s clemency policy and noting that prior to restoration of civil rights, “[t]he
petitioner must be free of any suspended sentence, probation, and parole for a minimum of
five (5) years; seven (7) years for drug convictions”) (last visited Nov. 23, 2002). For a
comprehensive summary of state restoration procedures, see U.S. DEPT OF JUSTICE,
RESTORING YOUR RIGHT TO VOTE, at http://www.usdoj.gov/crt/
restorevote/restorevote.htm (last visited Sept. 30, 2002) (listing restoration procedures in
each state).
Nevada and Kentucky—both of which indefinitely disenfranchise felons—have
recently made it easier for ex-offenders to restore their voting rights. Nevada law does not
automatically restore voting rights to convicts, but requires that any former felon who
applies for such restoration will receive it. NEV. REV. STAT. ANN. § 213.157 (Michie
Supp. 2001). Kentucky retains gubernatorial discretion in the restoration process, but has
simplified its standards. KY. REV. STAT. ANN. § 196.045 (Michie Supp. 2001).
Critics point out that restoration procedures may violate equal protection standards,
since most allow great discretion to state or county officials in deciding whether ex-
offenders will possess fundamental rights. See Du Fresne & Du Fresne, supra note 5, at
133; One Person, No Vote, supra note 9, at 1962.
28 . For example, Virginia—with over two hundred thousand disenfranchised ex-
offenders—restored voting rights to 404 ex-offenders in a recent two-year period. See
Marc Mauer, Felon Voting Disenfranchisement: A Growing Collateral Consequence of
Mass Incarceration, 12 FED. SENTENCING REP. 248 (2000). This may be a high number
relative to other indefinite-disenfranchisement states, since Virginia offers an
administrative procedure for the “removal of political disabilities” separate from an
official pardon, which is generally much more difficult to obtain. LOVE & KUZMA, supra
note 22, at 133. But see Bush, supra note 25, (arguing that “156,325 [Florida] felons had
their rights restored from 1964 to 1996” and that 1,893 felons had their rights restored in
1999).
Persons convicted of a federal felony usually fall under the disenfranchisement
policies of the state in which they live. This practice has a long history: a federal circuit
court held in 1876 that a person convicted in federal courts of a federal crime was not
disenfranchised under New York law. See United States v. Barnabo, 24 F. Cas. 1007,
2002:1045 “Civil Death 13
accurate, because not all the state constitutions that permanently bar some
offenders from voting use felony conviction as the cut-off point.31
Disenfranchisement is not part of the offender’s sentence, and is
therefore considered a “collateral consequence”32 of conviction. In the
language of the U.S. Supreme Court, because its purpose is not to punish
but to “designate a reasonable ground of eligibility for voting,”33 courts
have held that disenfranchisement “is not a punishment but rather a non
penal exercise of the power to regulate the franchise.”34 The reality,
however, is that U.S. criminal disenfranchisement policies are punitive,
both in their design and in their results. The Missouri Supreme Court,
surveying the history of criminal disenfranchisement in that state,
determined that the legislature clearly treated disenfranchisement as a
“part of the punishment” for specified crimes throughout the nineteenth
century.35 Today, another authority writes that “the most straightforward
1008-09 (C.C.S.D.N.Y. 1876). However, in at least sixteen states, federal convicts now
cannot take advantage of state restoration procedures, and must win a presidential pardon
if they wish to regain the vote. See Mauer, supra, at 248.
This Article does not examine the empirical questions of how many incarcerated
criminals and ex-offenders do vote—in states where they are permitted to—and would
vote if allowed to do so elsewhere. These are important questions, but whether or not a
person will choose to exercise a right of citizenship is largely immaterial in considering
whether that right should be recognized.
29 . H.R. 906, 106th Cong. 2 (1999). Many ex-felons therefore are effectively
forced to choose between the right to interstate travel and the right to vote. See Du Fresne
& Du Fresne, supra note 5, at 132.
30 .Ex-Offenders’ Voting Rights: Hearings on H.R. 9020 Before the Subcomm.
on Courts, Civil Liberties, and the Admin. of Justice of the House Comm. on the Judiciary,
93rd Cong. 11 (1974) [hereinafter Ex-Offenders’ Voting Rights Act Hearings] (testimony
of John A. Buggs, Staff Dir., U.S. Comm’n on Civil Rights).
31 . In Alaska, Georgia, Indiana, Iowa, Maryland, Mississippi, New Mexico,
Tennessee, and Washington, “infamous crimes,” crimes involving “moral turpitude,” or
offenses from a specific list bring about loss of the vote. See Hench, supra note 6, at 795-
97.
32 . Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony
Conviction: A National Study of State Statutes, 51 FED. PROBATION 52, 52 (1987); see
also BARBARA B. KNIGHT & STEPHEN T. EARLY, JR., PRISONERS’ RIGHTS IN AMERICA
289 (1986) (noting that “imposed deprivations rarely are part of an inmate’s sentence but
are statutorily defined collateral consequences of conviction and/or incarceration”).
33 . Trop v. Dulles, 356 U.S. 86, 96-97 (1958). The Court in Trop denied
Congress the power to withdraw an individual’s citizenship because of wartime desertion.
See id.
34 . Green v. Bd. of Elections, 380 F.2d 445, 450 (2d Cir. 1967) (quoting Trop,
356 U.S. at 97); see also Washington v. State, 75 Ala. 582, 585 (1884) (holding that
disenfranchisement is “imposed for protection [of the ballot box], and not for
punishment”).
35 . State ex rel. Barrett v. Sartorious, 175 S.W.2d 787, 788 (Mo. 1943); see also
Note, supra note 5, at 309-10 (arguing that historically “[t]he original purpose in depriving
the criminal of certain civil rights appears to have been to ostracize and degrade him in the
eyes of the community—a form of further punishment”). Historian Alexander Keyssar
writes of criminal disenfranchisement law that “the punitive thrust clearly was present for
14 WISCONSIN LAW REVIEW
explanation of [criminal disenfranchisement] provisions . . . is that they
are penal in nature and that the deprivation of the franchise is yet another
form of punishment that is imposed upon persons convicted of felonies.”36
Indeed, contemporary advocates of the policy argue frankly that “not
allowing criminals to vote is one form of punishment.”37 When the
Massachusetts legislature voted recently to amend the state constitution
and deprive incarcerated felons of the ballot, one prominent state
legislator said the loss of the vote “is part of the penalty—you are in jail,
you don’t pass go, you don’t collect the $200, you don’t vote until you get
out.”38
Certainly, disenfranchisement has severe punitive effects. As a
federal judge recently wrote,
Disenfranchisement is the harshest civil sanction imposed by a
democratic society. When brought beneath its axe, the
disenfranchised is severed from the body politic and condemned
to the lowest form of citizenship, where voiceless at the ballot
box . . . the disinherited must sit idly by while others elect his
much of the nineteenth century.” ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE
CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 162-63 (2000).
36 . BURT NEUBORNE & ARTHUR EISENBERG, THE RIGHTS OF CANDIDATES AND
VOTERS 32-33 (1976); see also Richard G. Singer, Conviction: Civil Disabilities, in
ENCYCLOPEDIA OF CRIME AND JUSTICE 243 (Stanford H. Kadish ed., 1983) (arguing that
collateral consequences of conviction are sometimes “the most persistent punishments that
are inflicted for crime”); Itzkowitz & Oldak, supra note 5, at 730 (arguing that, because
the sanction “occurs as a direct consequence of criminal conviction, and is not a mere
qualification such as age or residency which may be met with the passage of time,”
“disenfranchisement must be considered punitive”). Another authority writes that despite
legal and theoretical arguments to the contrary, “disenfranchisement is treated as a form of
punishment.” Jeffrey L. Harrison, Repentance, Redemption, and Transformation in the
Context of Economic and Civil Rights, in CIVIC REPENTANCE 39 (Amitai Etzioni ed.,
1999).
37 . Clegg, supra note 10, at 177. In congressional testimony, Todd F. Gaziano
of the Heritage Foundation described disenfranchisement as “part of the sanction for a
specified . . . crime.” See Civic Participation and Rehabilitation Act of 1999: Hearing on
H.R. 906 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary,
106th Cong. 41 (1999) [hereinafter Civic Participation Act Hearing] (statement of Todd F.
Gaziano, Senior Fellow in Legal Studies, Heritage Foundation). Gaziano has also said of
disenfranchisement, “[i]t’s part of the original punishment.” Siobhan McDonough, Group
for Felons Seeking Changes in Voting Policy, BOSTON GLOBE, Oct. 1, 2002, at 2.
38 . Frank Phillips, Lawmakers Push to Ban Inmate Votes: Amendment Would
Target Those Convicted of Felonies, BOSTON GLOBE, June 28, 2000, at B1 (quoting
Massachusetts House Minority Leader Francis Marini). Massachusetts Governor Paul
Cellucci said the new policy “has to do with punishing people for their crimes.” John
McElhenny, Legislature Votes to Bar Jailed Felons from Voting, BOSTON GLOBE, June 28,
2000, at B1, available at LEXIS, AP State & Local Wire; see also Olivares et al., supra
note 13, at 11 (arguing that a modest increase in laws disenfranchising ex-offenders
between 1986 and 1996 was partially attributable to the popularity of “get tough” criminal
justice policies in that period).
2002:1045 “Civil Death 15
civic leaders and while others choose the fiscal and
governmental policies which will govern him and his family.
Such a shadowy form of citizenship must not be imposed
lightly.39
In assessing arguments for and against criminal disenfranchisement, then,
it is important to examine the policy as a form of punishment, as well as a
regulation of the franchise.
B. Ancient and Medieval Roots
Most ideas about voting in the United States are indirect products of
European history,40 and the practice of barring criminals from politics is
no exception. In ancient Greece, those criminals “pronounced infamous”
were unable to appear in court or vote in the assembly, to make public
speeches, or serve in the army.41 In Rome, the ability to hold office and to
vote in the public assembly could be denied to those tagged with
infamia.42 During the Renaissance, peoples across Europe used the
condition of “outlawry” to punish some criminals; “outlaws” could be
killed with impunity, since they were literally considered to be outside the
law.43 European lawmakers later developed the concept of “civil death,
which put an end to the person by destroying the basis of legal capacity,
as did natural death by destroying physical existence.”44 In England, “a
39 . McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D. Miss. 1995).
40 .See CHILTON WILLIAMSON, AMERICAN SUFFRAGE: FROM PROPERTY TO
DEMOCRACY, 1760-1860, at viii (1960).
41 .See Note, supra note 8, at 1301. This step stopped short of ostracism, which
was physical banishment. However, ostracism was normally temporary and was not
necessarily a criminal sanction. See also Hancock, supra note 26, at 35 (arguing that
because Greek and Roman societies included so many people who lacked citizen status
and its rights and privileges, “the social and civic degradation accompanying a criminal
conviction served not only as a penal measure, but also as a deterrent to crime”).
42 .See CARL LUDWIG VON BAR ET AL., A HISTORY OF CONTINENTAL CRIMINAL
LAW 37-38 (1916).
43 . Itzkowitz & Oldak, supra note 5, at 722-23. Outlawry was an extreme
condition, as one contemporary explanation makes clear:
[he] 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.
Note, supra note 8, at 1301 n.6 (alteration in original); see also VON BAR ET AL., supra
note 42, at 504 (showing that in some countries, only the injured party received an
“unlimited right to revenge”).
44 . CARLO CALISSE, A HISTORY OF ITALIAN LAW 511 (Layton B. Register trans.,
1928). Civil death went beyond outlawry, as it imposed dishonor and legal incapacity on
the offender’s descendants. See Itzkowitz & Oldak, supra note 5, at 724; see also VON
BAR ET AL., supra note 42, at 272 (quoting a medieval French author who wrote of civil
death: “it sunders completely every bond between society and the man who has incurred
16 WISCONSIN LAW REVIEW
person pronounced attainted after conviction for a felony or . . . treason
[faced] forfeiture corruption of the blood [meaning that land owned by the
criminal would pass not to heirs but to king or lord], and loss of civil
rights.” 45 As on the continent, these practices were known in England as
“civil death,” and the attainted criminal was said to be “dead in law”
because he could not perform any legal function—including, of course,
voting.46
Such penalties were extreme, but modern critics of indefinite
disenfranchisement have noted theoretical similarities between medieval
punishments and the collateral consequences of conviction in the United
States today.47 Unlike lifetime disenfranchisement in the United States
today, however, early European penalties seem to have been limited to
very serious crimes, and were implemented only upon judicial
pronouncement in individual cases. Certainly, they help to demonstrate
the deep roots of policies placing some lawbreakers outside of political
society.
C. Early American Law
English colonists in North America transplanted much of the mother
country’s common law regarding the civil disabilities of convicts, and
supplemented it with statutes regarding suffrage. As towns were settled
and incorporated, new citizens required approval by town meetings,
usually based on religious conformity and property ownership.48 In
seventeenth- and eighteenth-century New England, “moral qualifications”
were broadly used to limit the franchise.49 “Plymouth refused to admit as
a freeman ‘any opposer of the good and wholsome laws of this colonie,’”
and in one town “a would-be freeman needed the testimony of his
neighbors that he was of ‘sober and peaceable conversation.’”50 One
could lose freeman status by behavior which was “‘grossly scandalouse,
or notoriously vitious.’”51 Plymouth Colony in 1658 “barred Quakers
from being freemen,” and also “provided that any person judged to be
it; he has ceased to be a citizen . . . he is without a country; he does not exist save as a
human being, and this, by a sort of commiseration which has no source in the law”).
45 . Itzkowitz & Oldak, supra note 5, at 724 (citations omitted).
46 .Id.
47 .See, e.g., Civil Death, GOVERNING, Dec. 1998, at 15 (reporting the
HRW/TSP study); Demleitner, supra note 4, at 775 (calling disenfranchisement a “modern
day remnant” of “civil death statutes”).
48 .See ALBERT EDWARD MCKINLEY, THE SUFFRAGE FRANCHISE IN THE
THIRTEEN ENGLISH COLONIES IN AMERICA 384-85 (1905).
49 . Cortlandt F. Bishop, History of Elections in the American Colonies, in 3
STUDIES IN HISTORY ECONOMICS AND PUBLIC LAW 1, 53 (Univ. Faculty of Pol. Sci. of
Columbia Coll. ed., 1893.)
50 .Id. at 54.
51 .Id. at 55.
2002:1045 “Civil Death 17
‘grosly scandalouse as lyers drunkards Swearers & C. shall lose theire
freedome of this Corporation.’”52 The reasoning behind Plymouth’s
statute was classically republican in spirit: “some corrupt members may
creep into the best and purest societies.”53 In Massachusetts Bay Colony,
disenfranchisement was authorized as an additional penalty for conviction
of “fornication or any ‘shamefull and vitious crime.’”54 Further south,
Maryland declared that a third conviction for drunkenness incurred loss of
suffrage.55
Early colonial law confronted directly the question of how long the
loss of freeman status and the ballot was to last. In Plymouth the
diminishment seems to have been permanent, but Connecticut law stated
that “good behaviour shall cause restoration of the privilege.”56 In both
Massachusetts and Connecticut, the decision to restore voting rights was
left to the court, but in pre-Revolutionary Rhode Island, anyone convicted
of bribing an election official was “forever thereafter . . . excluded from
being a Freeman, or voting, or bearing an public Office, whatsoever, in
this Colony.”57 And because the property test was then fundamental to
inclusion in the franchise, those convicted of possessing a fraudulent deed
were “forever” disenfranchised.58
If these examples indicate that disenfranchisement has a long history
in the United States, then they also illuminate important differences
between colonial and contemporary criminal disenfranchisement.
Originally, the removal of criminals from the suffrage had a visible,
public dimension; its purposes were articulated in the law; and it was a
discrete element in punishment which required the deliberation of courts
to implement. Moreover, crimes subject to the penalty of
disenfranchisement were either linked to voting itself, as in Rhode Island,
or defined as egregious violations of the moral code. Modern
disenfranchisement laws—automatic, invisible in the criminal justice
process, considered “collateral” rather than explicitly punitive, and
52 . BRADLEY CHAPIN, CRIMINAL JUSTICE IN COLONIAL AMERICA 1606-1660, at
54 (1983).
53 . Bishop, supra note 49, at 55.
54 .Id. at 55-56.
55 . CHAPIN, supra note 52, at 161 n.150.
56 . Bishop, supra note 49, at 55. This 1650 statute merits quoting in full:
It is ordered by this Courte and decreed, that if any person within these
Libberties have been or shall be fyned or whipped for any scandalous offence,
hee shall not bee admitted after such time to have any voate in Towne or
Commonwealth, nor to serue in the Jury, untill the Courte shall manifest theire
satisfaction.
Id.
57 . MCKINLEY, supra note 48, at 459.
58 .See id. at 461.
18 WISCONSIN LAW REVIEW
applied to broad categories of crimes with little or no common character
—do not share any of these characteristics.59
After achieving independence from Great Britain, the American
states rejected some of their English common-law heritage. 60 Some states
did adopt “civil death” statutes for criminal offenders,61 but the
Constitution prohibited bills of attainder, forfeiture for treason, and
“Corruption of Blood.”62 Meanwhile, a slow but profound shift began in
how Americans thought about suffrage, as increasing numbers of citizens
gained access to the polls. As the U.S. Commission on Civil Rights
would write almost two centuries later:
The new nation began with a prevailing attitude that the right to
vote should be limited to the few who proved themselves
qualified . . . . Gradually the nation shifted to the modern
concept that voting is a right which belongs to every citizen
except the few who are specifically disqualified by the
qualification requirements of their States.63
Early state constitutions often required evidence of good character
for balloting privileges, a test used to exclude those with criminal
records.64 Many constitutions disqualified felons explicitly, or directed
their legislatures to do so: between 1776 and 1821, eleven state
constitutions disqualified criminals from voting.65 Vermont’s legislature
initially empowered the state supreme court to disenfranchise any
freeman convicted of a “notoriously scandalous” offense, but a legislative
council formed in 1800 to review the constitutionality of statutes
determined the law to be of “vague and uncertain meaning,” and
thereafter Vermont disenfranchised only those convicted of election
59 . By contrast, modern German disenfranchisement law appears quite similar to
the American colonial model. See Demleitner, supra note 4, at 755-56 (showing that in
Germany “deprivation of voting rights is limited to serious, legislatively enumerated
offenses, must be assessed directly by the sentencing judge at the time of sentencing, and
can be imposed only for a limited and relatively short period of time”).
60 . Itzkowitz & Oldak, supra note 5, at 725.
61 .Id.
62 . U.S. CONST. art. III, § 3, cl. 2.
63 . U.S. COMMN ON CIVIL RIGHTS, WITH LIBERTY AND JUSTICE FOR ALL 23
(1959).
64 . CIVIC IDEALS, supra note 11, at 529 n.18.
65 . The eleven states which barred criminals from voting by 1821 were
Alabama, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Mississippi, Missouri, New
York, Ohio, and Virginia. See Green, 380 F.2d at 450 n.4 (listing state constitutional
provisions); see also KEYSSAR, supra note 35, at tbl.A.7 (“Suffrage Exclusions for
Criminal Offenses: 1790-1857”); id. at tbl.A.9 (“Summary of Suffrage Requirements in
Force: 1855”).
2002:1045 “Civil Death 19
offenses.66 Vermont’s decision was unusual, however, and by 1868
eighteen more states excluded serious offenders from the franchise.67
Some of the increase may be attributable to class bias in a time of
declining property tests, as elites sought to limit the political strength of
lower-class groups.68 As Kirk Harold Porter notes, there was “great
diversity of practice,” but “infamous crimes” and penitentiary offenses
usually brought permanent loss of suffrage.69 In addition, perjury,
forgery, bribery, and larceny were frequently cause for permanent
disenfranchisement, as was dueling. It is instructive that these crimes
were so often enumerated in disenfranchisement statutes, because as
infractions punishable by time in the penitentiary they would have earned
the sanction anyway.70 Such prohibitions indicate that early U.S.
disenfranchisement law continued to target those crimes manifesting a
particularly immoral character.71
Two more aspects of voting law as of 1860 are important. First, of
those commonly disqualified on the eve of the Civil War—women, men
without extended residency, blacks, soldiers, students, the
institutionalized mentally ill, and criminals—only the last two groups are
66 .See Hancock, supra note 26, at 36. The Council suggested that broad
disenfranchisement ran “against the letter and spirit of the eighth article of the bill of
rights,” and argued that “the framers and adopters of the constitution, contemplated to
preserve inviolate the right of suffrage to every freeman, unless he should in fact forfeit
the right, by acting wickedly and corruptly, relating only to that estimable privilege.” Id.
67 . State constitutions disenfranchising criminals between 1831 and 1868 were
those of California, Delaware, Florida, Georgia, Iowa, Kansas, Maryland, Minnesota,
Nevada, New Jersey, North Carolina, Oregon, Rhode Island, South Carolina, Tennessee,
Texas, West Virginia, and Wisconsin. See Green, 380 F.2d at 450 n.5 (listing state
constitutional provisions); see also KIRK HAROLD PORTER, A HISTORY OF SUFFRAGE IN
THE UNITED STATES 148 (Greenwood Press 1971) (photo. reprint 1969) (1918); KEYSSAR,
supra note 35, at tbl.A.15 (“Disenfranchisement of Felons and Others Convicted of
Crimes: 1870-1920”).
68 .See WARD E. Y. ELLIOTT, THE RISE OF GUARDIAN DEMOCRACY 43 (1974)
(arguing that criminal disenfranchisement may have been implemented in response to the
elimination of the property test, since “abolishing property tests revealed that they had
served a number of indispensable functions, such as holding down the voting strength of
free blacks, women, infants, criminals, mental incompetents, unpropertied immigrants,
and transients”).
69 . PORTER, supra note 67, at 147; see also Stephens v. Yeomans, 327 F. Supp.
1182, 1187-88 (D.N.J. 1970) (finding that “[d]isenfranchisement of felons in New Jersey
has had a curious history” characterized by “haphazard development”).
70 .See PORTER, supra note 67, at 147.
71 .See KEYSSAR, supra note 35, at 163 (arguing that nineteenth-century
criminal disenfranchisement law grew from the belief “that a voter ought to be a moral
person”).
20 WISCONSIN LAW REVIEW
still broadly disenfranchised today.72 This is a striking indication of how
much American attitudes toward voting have changed. Second, it is
important to recall that in 1860, blacks were only permitted to vote in six
states.73 In almost every state where criminal offenders were
disenfranchised, blacks were also denied the ballot by law.74 Since blacks
were already barred from voting because of their race, discriminatory
intent could not have been at the heart of antebellum criminal
disenfranchisement.
That would soon change. After Reconstruction, several Southern
states carefully re-wrote their criminal disenfranchisement provisions
with the express intent of excluding blacks from the suffrage.75 Our
history of the law encounters a long silence following those revisions,
however, as scholars know very little about criminal disenfranchisement
policies in the century after Reconstruction.76 State constitutions offer
some hints of change, but most policies appear to have remained largely
unaltered.77
One major development in criminal disenfranchisement law did
occur in the immediate aftermath of the Civil War: in 1868, the
Fourteenth Amendment was added to the Constitution.78 Despite the
72 . The ballot access of non-institutionalized mentally-ill adults continues to
improve. See, e.g., Erica Goode, Gentle Drive to Make Voters of Those with Mental
Illness, N.Y. TIMES, Oct. 13, 1999, at A1 (showing that state and national advocacy groups
are working successfully to educate, register, and motivate the mentally ill to vote, with
funding from mental health professionals, pharmaceutical companies, and federal grants).
73 . The six states which allowed blacks to vote in 1860 were Maine,
Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. PORTER, supra
note 67, at 148. Of these, only New York and Rhode Island also disenfranchised
criminals. See id.
74 .Id.
75 . For explanation of these changes, see infra Part II.C.1.
76 . As one authority writes, “[t]here were remarkably few court cases dealing
with [criminal disenfranchisement] prior to the 1960s.” KEYSSAR, supra note 35, at 303.
There is virtually no scholarship on the practice in the late nineteenth and early twentieth
centuries. But see DUDLEY O. MCGOVNEY, THE AMERICAN SUFFRAGE MEDLEY 54-57
(1949) (summarizing criminal disenfranchisement laws as of 1949.)
77 . For example, Congress did not disenfranchise criminals in the Territory of
Wyoming in 1868, but the state in 1889 added a provisions barring from the suffrage those
“convicted of infamous crimes.” Compare ORGANIC ACT OF WYOMING § 5 (1868), with
WYO. CONST. of 1889, art. VI, §6. Louisiana’s Constitution of 1921 prohibited anyone
convicted of a crime punishable by incarceration in the state penitentiary from voting, but
dropped that provision in 1974. LA. CONST. of 1921, art. VII, §6; LA. CONST. of 1974, art.
XI, §1. State constitutions are not sufficient indicators of convicts’ voting rights, however,
because many merely allow legislative action, and some constitutional language does not
clearly indicate whether criminals will lose the vote temporarily or permanently.
Legislative history, meanwhile, is also poorly understood. One authority notes simply that
“studies of state legislatures’ reform and/or repeal of criminal disenfranchisement laws do
not exist.” Shapiro, supra note 2, at 564 n.146.
78 . The first two sections of the Amendment are most relevant to criminal
disenfranchisement law. Section 1 reads in part: “No State shall make or enforce any law
2002:1045 “Civil Death 21
liberating intent of the Amendment and the powerful language of the
Equal Protection Clause, the Fourteenth Amendment has had the perverse
effect of strengthening modern disenfranchisement law. That this would
be the case, however, did not become clear until the Supreme Court
evaluated criminal disenfranchisement’s constitutionality more than a
century after the Amendment’s enactment.
D. The Fourteenth Amendment and Richardson v. Ramirez
One authority has argued that “[t]here are so many constitutional
arguments against the disenfranchisement of felons that one can only
wonder at the survival of the practice.”79 But in 1974, the U.S. Supreme
Court in Richardson v. Ramirez80 upheld state laws disenfranchising ex-
offenders, 81 and did so in a way that placed a significant hurdle in front of
subsequent legal challenges.82 Richardson frustrates attempts to
understand the ideological principles behind American criminal
disenfranchisement, because the Court made a quintessentially “textual”
decision in eschewing serious attention to political theory, broad
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.” U.S. CONST.
amend. XIV, §1. Section 2 reads in part, “[r]epresentatives shall be apportioned among
the several States according to their respective numbers, counting the whole number of
persons in each State . . . . But when the right to vote at any election . . . is denied to any of
the male inhabitants of such State, being twenty-one years of age, and citizens of the
United States, or in any way abridged, except for participation in rebellion, or other crime,
the basis of representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one years of age
in such State.” U.S. CONST. amend. XIV, § 2 (emphasis added). For an explanation of the
history of Section 2, see infra note 90.
79 . Fletcher, supra note 6, at 1903.
80 . 418 U.S. 24 (1974).
81 .Id. at 56. The Court had indirectly endorsed criminal disenfranchisement
before. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S. 663, 672, 675 n.4 (1966)
(Black, J., dissenting) (finding provisions barring “convicted felons or the insane” from
voting are example of restrictions which may “result[] in treating some groups differently
from others” without offending the Equal Protection Clause of the Fourteenth
Amendment, and noting that “states have from the beginning and do now qualify the right
to vote because of age, prior felony conviction, illiteracy, and various other reasons.”);
Lassiter v. Northampton Bd. of Elections, 360 U.S. 45, 51 (1959) (“Residence
requirements, age, previous criminal record are obvious examples indicating factors which
a State may take into consideration in determining the qualifications of voters.” (citation
omitted)); Davis v. Beason, 133 U.S. 333, 346-47 (1889) (holding that Idaho Territory
statute which provided that “no person . . . convicted of treason, felony, or bribery . . .
unless restored to civil rights . . . is permitted to vote at any election” “is not open to any
constitutional or legal objection”); see also Green, 380 F.2d at 451 (listing Supreme Court
opinions which “recognized” states’ power to deprive felons of the ballot).
82 . One lower court interpreted Richardson “as having closed the door on the
equal protection argument in a challenge to state statutory voting disqualifications for
conviction of crime.” Allen v. Ellisor, 664 F.2d 391, 395 (4th Cir. 1981).
22 WISCONSIN LAW REVIEW
Constitutional principles, or social norms.83 However, the majority’s
decision in the case, the constitutional and historical grounds which the
Court offered in support of its position, and the flaws which critics have
noted in the opinion all make understanding Richardson crucial.
In 1972, three California men who had been convicted of felonies
and served their sentences attempted to vote in three different counties,
and were denied by the respective county clerks because of their criminal
records.84 The California Constitution and statutes then in force denied
persons “convicted of infamous crimes” or any felony from voting.85 The
men argued that under the Equal Protection Clause and the strict scrutiny
to which the Supreme Court has subjected suffrage restrictions, only a
compelling state interest can justify limitation of the franchise; any
proposed restriction must be necessary and narrowly tailored to achieve
83 .See Manfredi, supra note 4, at 283-284 (arguing that Richardson “is an
almost perfect illustration of interpretivist constitutional adjudication at work,” since it
relies entirely on the text of the Constitution with no consideration either of norms implicit
in the document or widely held in society). Writing for the Court, Justice Rehnquist
argued that the history of Section 2 of the Fourteenth Amendment was not essential to its
interpretation, because “how it became part of the Amendment is less important than what
it says and what it means.” Richardson, 418 U.S. at 55.
84 .Ramirez, 507 P.2d at 1346.
85 .Id. at 1347-48.
2002:1045 “Civil Death 23
that interest.86 The California Supreme Court agreed, and struck down
California’s permanent-disenfranchisement law.87
The U.S. Supreme Court overturned the California ruling in an
unexpected way.88 Examining disenfranchisement “[i]n the light of [the]
evolution of the law of equal protection,”89 the California Supreme Court
had made no mention of Section 2 of the Fourteenth Amendment, which
declares that any state which disenfranchises adult males—“except for
participation in rebellion, or other crime,” in the words of the Amendment
—will face proportionate reduction in its congressional representation.90
But Section 2 was central to the U.S. Supreme Court’s analysis of
permanent disenfranchisement’s constitutionality. Writing for the
86 .See id. at 1357. The Supreme Court has repeatedly declared the right to vote
to be fundamental and applied strict scrutiny to legislation restricting suffrage. See, e.g.,
Dunn v. Blumstein, 405 U.S. 330, 337, 343 (1972) (holding that durational residence laws
are unconstitutional unless a state can demonstrate not only that a “compelling state
interest” exists for a “a challenged statute [which] grants the right to vote to some citizens
and denies the franchise to others,” but also that such laws are drawn with “precision,”
“tailored” to achieve legitimate objectives); Kramer v. Union Free School District No. 15,
395 U.S. 621, 626-627, 632 (1969) (holding that statutes distributing the franchise
“constitute the foundation of our representative society” and therefore in any review of a
state law restricting suffrage “the Court must determine whether the exclusions are
necessary to promote a compelling state interest”); Harper, 383 U.S. at 670 (calling the
right to vote “precious” and “fundamental”); Carrington v. Rash 380 U.S. 89, 96 (1965)
(noting that “this [Supreme] Court has been so zealous to protect” the right to vote); Lucas
v. Forty-Fourth Gen. Assemb. of Colo., 377 U.S. 713, 736 (1964) (holding that the
“individual’s constitutionally protected right to cast an equally weighted vote” is among
the list of “fundamental rights” which cannot be limited); Reynolds v. Sims 377 U.S. 533,
555, 561-62 (1964) (noting that the right to vote is “the essence of a democratic society,”
“a fundamental matter in a free and democratic society,” and that because the right to vote
is “a fundamental right . . . preservative of all rights,” any “alleged infringement of the
right of citizens to vote must be carefully and meticulously scrutinized”). In O’Brien v.
Skinner, the Court applied equal protection analysis in striking down those provisions of
New York state law, which denied absentee ballots to incarcerated misdemeanants and pre-
trial detainees. 414 U.S. 524, 531 (1974). However, the Court in O’Brien made clear that
“the New York election laws here in question do not raise any question of
disenfranchisement of a person because of conviction for criminal conduct.” Id. at 528.
87 .Ramirez, 507 P.2d at 1357. The California court examined
disenfranchisement in light of the state’s need to “deter election fraud.” Id. at 1349. The
men also claimed that the variation in county election officials’ enforcement of ex-felon
disenfranchisement provisions constituted a denial of due process. Id. at 1346. Since the
California Supreme Court agreed with their first claim, it did not reach the second. Id. at
1357. Meanwhile, the California Secretary of State asked the court to affirm the
constitutionality of statutes denying suffrage to incarcerated convicts, but the court refused
to do so since the question was “not presented in the case at bar.” Id. at 1357 n.18. Federal
courts had previously applied equal protection analysis to laws disenfranchising former
felons. See Stephens, 327 F. Supp. at 1187-88; Dillenburg v. Kramer, 469 F. 2d. 1222,
1224 (9th Cir. 1972).
88 . DAVID RUDENSTINE, THE RIGHTS OF EX-OFFENDERS 44 (1979).
89 .Ramirez, 507 P.2d at 1353.
90 . Congress was not ready to ban racial discrimination in voting, and enacted
Section 2 in an attempt to discourage Southern states from disenfranchising blacks, while
24 WISCONSIN LAW REVIEW
majority, Chief Justice Rehnquist argued that because the “express
language” of Section 2 apparently permits states to bar convicts from
voting, the Equal Protection Clause in Section 1 “could not have been
meant to bar outright a form of disenfranchisement which was expressly”
allowed by the following section.91 In essence, the Court held that the
reference to criminal disenfranchisement in Section 2 “obviated any need
to justify it with a compelling state interest.”92
Critics have articulated several challenges to the logic of the Court’s
opinion in Richardson. In dissent, Justice Thurgood Marshall argued
simply that criminal disenfranchisement “must be measured against the
requirements of the Equal Protection Clause of Section 1 of the
Fourteenth Amendment.”93 Laurence Tribe notes that in important
voting-rights cases, the Court has found that “the reach of the equal
protection clause . . . is not bound to the political theories of a particular
era but draws much of its substance from changing social norms and
evolving conceptions of equality.”94 Therefore, that the framers of the
permitting them to do so. See ELLIOTT, supra note 68, at 57. For a partial text of Section
2, see supra note 78. Many constitutional scholars today consider Section 2 to be
effectively obsolete. See infra, notes 101-105 and accompanying text. For further
discussion of the racial dimension of Section 2, see infra Part III.C.4.
91 .Richardson, 418 U.S. at 54-55. The second section of the Fourteenth
Amendment refers to voters disenfranchised for “participation in rebellion, or other
crime.” U.S. CONST. amend. XIV, § 2. In Green, Judge Friendly had similarly employed
Section 2 to defend criminal disenfranchisement against the equal protection standard of
Section 1. 380 F.2d at 452.
92 . Note, supra note 8, at 1302 n.8.
93 .Richardson, 418 U.S. at 77 (Marshall, J., dissenting). Such analysis,
Marshall wrote, “properly begins with the observation that because the right to vote ‘is of
the essence of a democratic society, and any restrictions on that right strike at the heart of
representative government,’ voting is a fundamental right.” Id. (quoting Reynolds, 377
U.S. at 555). For an explanation of the equal protection challenges to criminal
disenfranchisement, see also Note, supra note 5, and Du Fresne & Du Fresne, supra note
5. Both essays conclude that only laws temporarily disenfranchising those who break
election law would survive equal protection scrutiny. See Du Fresne & Du Fresne, supra
note 5, at 138; Note, supra note 5, at 319-20.
94 . LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 13-16, at 1094
(2d ed. 1988) (footnote omitted); see Harper, 383 U.S. at 669 (observing that “[i]n
determining what lines are unconstitutionally discriminatory, we have never been confined
to historic notions of equality, any more than we have restricted due process to a fixed
catalogue of what was at a given time deemed to be the limits of fundamental rights”); see
also David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293,
303 (1976). As Shapiro points out, the Court had held in Dunn that durational residency
requirements popular at the adoption of the Fourteenth Amendment—and specifically
authorized by Congress—were nevertheless invalid under equal protection analysis. Id.
(discussing Dunn, 405 U.S. at 335). Shapiro contends that “there is not a word in the
fourteenth amendment suggesting that the exemptions in Section 2’s formula are in any
way a barrier to the judicial application of Section 1 in voting rights cases.” Shapiro,
supra, at 335. Moreover, the Court observed in Harper that “[n]otions of what constitutes
equal treatment for purposes of the Equal Protection Clause do change.” Harper, 383 U.S.
at 669.
2002:1045 “Civil Death 25
Fourteenth Amendment apparently accepted criminal
disenfranchisement95 should not turn us away from skeptical scrutiny of
any government practice which results in denial of the franchise.96 As the
Ninth Circuit put it in a previous test of criminal disenfranchisement law,
“constitutional concepts of equal protection are not immutably frozen like
insects trapped in Devonian amber.”97 But the Court in Richardson failed
to reconcile criminal disenfranchisement law with its previous decisions
on voting and citizenship.98
The Court’s previous disregard for Section 2,99 together with
subsequent Amendments and the Court’s interpretation of those
95 . In Richardson, the Court pointed as evidence of this claim to the mention of
felon disenfranchisement in the readmission acts which allowed Southern states to return
to the Union. 418 U.S. at 48-52.
96 .See TRIBE, supra note 94, § 13-16, at 1094. In rejecting several state
interests commonly offered for disenfranchising criminals, Tribe makes two particularly
original points. First, the state’s interest in an informed electorate would fail to justify the
practice, since some convicts are better informed about policy than many law-abiding
citizens. Id. Second, while deterring crime and punishing criminals are surely compelling
interests, disenfranchisement is not necessary to those interests given the availability of
other sanctions. Id. Meanwhile, even if subjected to the lowest level of constitutional
scrutiny, criminal disenfranchisement might very well be adjudged as “arbitrary and
irrational” and overturned on those grounds. Fletcher, supra note 6, at 1903.
97 . Dillenburg v. Kramer, 469 F.2d 1222, 1226 (9th Cir. 1972).
98 . The Court had previously observed that voting is equivalent to citizenship,
and that citizenship may not be revoked as punishment. See Afroyim v. Rusk, 387 U.S.
253, 267-68 (1967); Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (voting is essentially
equivalent to citizenship); Trop, 356 U.S. at 101-02 (finding that citizenship cannot be
taken away as a form of punishment). But in Richardson, as one critic puts it, the Court
“failed to close the syllogistic circle.” Furman, supra note 10, at 1198.
99 . Historically, the Court has cast few glances at Section 2. See, e.g., Elk v.
Wilkins, 112 U.S. 94, 102 (1884) (citing the phrase “excluding Indians not taxed” in
Section 2 of the Fourteenth Amendment in holding that Native Americans born in the
United States are not automatically citizens); United States v. Reese, 92 U.S. 214, 247
(1875) (Hunt, J., dissenting) (arguing that “[b]y the second section of the Fourteenth
Amendment, each state had the power to refuse the right of voting at its elections to any
class of persons; the only consequence being a reduction of its representation in
Congress”).
Justice Harlan’s dissent in Reynolds contains a lengthy analysis of the Fourteenth
Amendment’s history and purpose, focusing on whether the first section applies to voting
rights. 377 U.S. at 595-611 (Harlan, J., dissenting). Harlan denounced the Warren Court
for having wrongly interpreted the Fourteenth Amendment and having “relegated the
Fifteenth and Nineteenth Amendments to the same limbo of constitutional anachronisms
to which the second section of the Fourteenth Amendment has been assigned.” Id. at 612.
See also Oregon v. Mitchell, 400 U.S. 112, 162, 164 (Harlan, J., dissenting) (interpreting
Section 2 to mean Section 1 “could hardly have been understood as affecting the
provisions of the Constitution placing voting qualifications in the hands of the states,” and
writing of Section 2 that “[s]ince that section did not provide for enfranchisement, but
simply removed representation for disfranchisement, any doubts about the effect of the
broad language of § 1 were removed”). For a reply to many of Harlan’s claims, see
William W. Van Alstyne, The Fourteenth Amendment, the Right to Vote, and the
26 WISCONSIN LAW REVIEW
Amendments, have effectively made Section 2 a dead letter.100 Scholars
today refer to Section 2 as “an obsolete and never enforced provision,”101
and a “never-exercised tool;”102 it is a “Reconstruction-era measure[] of
no lasting significance,”103 which is “no longer operative”104 and “has
never had a practical impact.”105
But by relying on Section 2 in its interpretation of Section 1 of
the Fourteenth Amendment, Richardson may have “call[ed] into question
the entire right-to-vote jurisprudence.”106 In essentially using Section 2 as
a legislative history of Section 1, the Richardson Court focused narrowly
on what the Fourteenth Amendment meant in the nineteenth century,
rather than the twentieth. But if the application of equal protection
analysis to voting rights were trapped in the “Devonian amber” of Section
2 in all cases, states could conceivably disenfranchise anyone—for any
reason except those prohibited by subsequent Amendments—and merely
face proportionate reduction in their congressional delegation.107
Understanding of the Thirty-Ninth Congress, 1965 SUP. CT. REV. 33, 85 (1965) (arguing
that because the legislative history of the Fourteenth Amendment is “inconclusive,” the
application of equal protection scrutiny to voting-rights cases is defensible). Recent
literature on this question is summarized in MICHAEL J. PERRY, WE THE PEOPLE: THE
FOURTEENTH AMENDMENT AND THE SUPREME COURT 217 n.69 (1999).
100 . The Court has previously used even literally defunct passages of the
Constitution to help it interpret other sections. See, e.g., Gibbons v. Ogden, 22 U.S. (9
Wheat.) 1, 14 (1824) (considering, in exploring whether states possess “a general right
over the subject of commerce,” the meaning for that question of the ban in Art. I, § 9 of
the U.S. Constitution of any law by Congress prior to 1808 prohibiting the importation of
slaves, as well as states’ power to regulate the slave trade prior to that date).
101 . MCGOVNEY, supra note 76, at 52.
102 . CIVIC IDEALS, supra note 11, at 310.
103 . DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN
CONSTITUTION 297 (1990).
104 . PERRY, supra note 99, at 212 n.18.
105 . LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A
CHANGING AMERICA: RIGHTS, LIBERTIES, AND JUSTICE 675 (2001). Of the five texts cited
supra notes 101-105, only the first was written before the Court handed down its decision
in Richardson.
106 . Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. REV. 330, 356 n.119
(1993). Writing just before Richardson came to the Court, even an authority who
supported felon disenfranchisement acknowledged that the Court’s silence on the issue
was “logically out of line with its other decisions on voting qualifications.” ELLIOTT,
supra note 68, at 348-49 n.61.
107 . Because it “merely ascribes a price to the action without preventing it from
continuing,” Section 2 permits discrimination rather than forbidding it. Winkler, supra
note 106, at 357 n.119. The Court’s respect for Section 2 in Richardson leaves other
important questions unanswered as well. Dissenting in Richardson, Justice Marshall
observed that disenfranchisement for a jaywalking or traffic infraction would be fully
constitutional under the Court’s approach, since Section 2 refers only to “crime.” See
Richardson, 418 U.S. at 75 n.24 (Marshall, J., dissenting). David L. Shapiro notes that
Section 2 permits the vote to be “denied” to those who are not male citizens over age
twenty-one, but merely “abridged” for rebels and other criminals, suggesting that lifetime
disenfranchisement was not endorsed by its authors. See Shapiro, supra note 94, at 303
2002:1045 “Civil Death 27
In Richardson, the Court plucked a phrase from a long-slumbering
sentence and breathed new life into it, reading the Fourteenth Amendment
in isolation from subsequent Amendments and constitutional
jurisprudence.108 The result was a ruling which cannot be coherently
reconciled with a generation of Supreme Court decisions protecting
voting rights.
II. THE IDEOLOGICAL FOUNDATIONS OF CRIMINAL
DISENFRANCHISEMENT LAW
The textual nature of the Court’s decision in Richardson precluded
investigation of principled arguments for and against laws removing
suffrage rights from offenders. Parts II and III of this Article examine
such arguments. This Part shows that the liberal, republican, and racially
discriminatory traditions in American political thought have each
provided important support for criminal disenfranchisement.
A. The Liberal Case for Criminal Disenfranchisement
Whether or not one agrees that “America is predominantly a Liberal
society with its intellectual origins in England,”109 it is clear that
n.34. George Fletcher points out that by the logic of Richardson, and in the absence of the
Nineteenth Amendment, women would be deprived of the vote and of any equal-
protection claim, because Section 2 clearly refers to “male” voters. See Fletcher, supra
note 6, at 1903-04. “Citizens,” “persons,” and “electors” are all identified as “male” in the
second section of the Amendment. See U.S. CONST. amend. XIV, § 2. Indeed, early
leaders of the women’s suffrage movement felt “betrayed” by the Amendment, because for
the first time the word “male” was introduced into the Constitution. See ERIC FONER,
RECONSTRUCTION: AMERICAS UNFINISHED REVOLUTION 1863-1877, at 255 (1988).
108 . Instead of explaining Section 2’s implications for voting rights, the Court
focused on the lack of controversy surrounding the reference to criminal
disenfranchisement in Section 2. The Court noted that “[t]he legislative history bearing on
the meaning of the relevant language of section 2 is scant indeed.” Richardson, 418 U.S.
at 43. The Court was probably correct to interpret history’s relative silence surrounding
the phrase “or other crime” to mean that permitting the disenfranchisement of criminals to
proceed without penalty did not change the political status quo in 1868. Cf. id. at 45. Five
Congressmen and Senators spoke in favor of the criminal disenfranchisement phrase
during the drafting of the Amendment, most of them indirectly. See id. at 45-48.
Richardson was handed down even as a subcommittee of the House Judiciary
Committee held hearings on a bill that would have prohibited the disenfranchisement of
ex-offenders. See Ex-Offenders’ Voting Rights Act Hearings, supra note 30. The
Richardson ruling may have made further congressional action difficult politically, if not
constitutionally. Subsequent bills aimed at ending lifetime criminal disenfranchisement
include: Constitutional Protection of the Right to Vote Act, H.R. 1228, 107th Cong.
(2001); Civic Participation and Rehabilitation Act of 1999, H.R. 906, 106th Cong. (1999);
Voting Rights of Former Offenders Act, H.R. 568, 105th Cong. (1997); Voting Rights of
Former Offenders Act, H.R. 3028, 104th Cong. (1996).
109 . DAVID M. RICCI, COMMUNITY POWER & DEMOCRATIC THEORY: THE LOGIC
OF POLITICAL ANALYSIS 10 (1971); see also Charles Taylor, Cross-Purposes: The
Liberal-Communitarian Debate, in LIBERALISM AND THE MORAL LIFE 159, 164 (Nancy
28 WISCONSIN LAW REVIEW
contractarian liberalism has had immense influence on the nation’s
political thought. The modern contractarian argument for the
disenfranchisement of criminals assumes that no particular attribute or
action by the citizen is required to gain voting rights: passive, tacit
consent is sufficient for inclusion in the polity. Active, rational violation
of the contract, however, is grounds for disqualification. For liberals, the
ideal state is a neutral compact designed to allow individuals to define
their own “goods,” and political activity is instrumental and self-
interested. But having violated the rules, the criminal forfeits the right to
participate in such activity: if you break the law, you don’t get to make the
law. The origins of this argument lie in some of the best-known works of
Western political thought.
1. FOUNDATIONS
In John Locke’s famous analysis of the origins and purpose of
government, we find a straightforward and familiar justification for the
disenfranchisement of criminals. Locke imagines that before uniting into
political commonwealths, men possessed freedoms and rights in a “state
of nature.”110 The core of the “law of nature” which governed that
condition, in Locke’s account, was that “no one ought to harm another in
his life, health, liberty, or possessions.”111 That law would be sufficient,
“were it not for the corruption and vitiousness of degenerate men,”112 who
transgress the bounds of right, “invading others’ rights and . . . doing hurt
to one another.”113 In order to remedy that insecurity, and with the “great
and chief end”114 of preserving their property and persons, men unite into
commonwealths; they give to the state their power to punish
transgressors, in exchange for greater security and greater impartiality in
the administration of justice.115
Locke waxes metaphorical in describing rule breakers, and his
symbolism is instructive. The criminal, Locke writes, has “renounced
reason, the common rule and measure God hath given to mankind . . .
L. Rosenblum ed., 1989) (describing “a family of theories of liberalism that is now very
popular, not to say dominant, in the English-speaking world”); see also HARTZ, supra note
15. For explanation of how the term “liberal” is used in this Article, see supra note 15 and
accompanying text.
110 . LOCKE, supra note 15, § 6, at 9.
111 .Id.
112 .Id. § 128, at 67.
113 .Id. § 7, at 9.
114 .Id. § 124, at 66.
115 .See id. § 130, at 67. Thomas Hobbes articulated a contract theory of
government half a century before Locke. THOMAS HOBBES, LEVIATHAN 79-88 (Edwin
Curley ed., Hackett Publ’g 1994) (1668). Locke’s more optimistic view of human nature
and his conclusions of limited government and the right to rebel have shaped American
political thought much more than have the ideas of Hobbes.
2002:1045 “Civil Death 29
declared war against all mankind, and therefore may be destroyed as a
lion or tyger, one of those wild savage beasts, with whom men can have
no society nor security.”116 Criminals follow not the law of reason, “but
that of force and violence, and so may be treated as beasts of prey.117 In
Locke’s view, one who commits a crime forfeits his right to participate in
the political process—if not his rights to property and person. By acting
against the property or person of others, the criminal has failed to grasp
the need for security, and threatened to destroy the very compact which
makes civilized life possible.
Locke was not alone among seventeenth-century English political
theorists in arguing that criminals forfeit their political rights. Even the
most radical democrats in the Anglo-American tradition, the English
“Levellers” of the 1640s, believed criminals should not be allowed to
vote.118 Locke’s contemporary Algernon Sidney, who like Locke was
influential in America,119 also emphasized law-abiding behavior as the
basis of the contract.120 Two later authors, meanwhile, also provided
support for the social-contract theory of criminal disenfranchisement. In
On the Social Contract, Jean-Jacques Rousseau echoes Locke’s call for
the expulsion of wrongdoers from political society:
[E]very malefactor who attacks the social right becomes
through his transgressions a rebel and a traitor to the homeland;
in violating its laws, he ceases to be a member, and he even
wages war with it. . . . Thus one of the two must perish; and
when the guilty party is put to death, it is less as a citizen than
116 . LOCKE, supra note 15, § 11, at 11. Locke writes, “[i]n transgressing the law .
. . the offender declares himself to live by another rule than that of reason and common
equity . . . and so he becomes dangerous to mankind.” Id. § 8, at 10.
117 .Id. § 16, at 14. Locke’s view has clear connections with the older concept of
“civil death.” As one authority writes, the principle behind medieval outlawry in
Scandinavia was that “whoever would not recognize the rights of others, should not
himself enjoy any.” VON BAR ET AL., supra note 42, at 134.
118 .See LEVELLER MANIFESTOES OF THE PURITAN REVOLUTION 226-28 (Don M.
Wolfe ed., 1944). The Leveller position is notable because the Levellers opposed the
property test and advocated universal suffrage; cf. THE ENGLISH LEVELLERS (Andrew
Sharp ed., 1998).
119 . On Sidney’s influence among Americans such as Thomas Jefferson, Samuel
Adams, and Benjamin Franklin, see SCOTT A. NELSON, THE DISCOURSES OF ALGERNON
SIDNEY 146 (1993).
120 . In his Discourses Concerning Government (1698), Sidney wrote that “no
man will suffer his natural liberty to be abridged, except others do the like.” Nelson, supra
note 119, at 43. Sidney also argued that “truth, faithful dealing, [and] due performance of
Contracts are bonds of Union, and helps to good.” ALAN CRAIG HOUSTON, ALGERNON
SIDNEY AND THE REPUBLICAN HERITAGE IN ENGLAND AND AMERICA 169 (1991)
(alteration in original) (citation omitted).
30 WISCONSIN LAW REVIEW
as an enemy. . . . [H]e has broken the social treaty, and
consequently . . . he is no longer a member of the state. 121
For his part, the utilitarian liberal John Stuart Mill calls the suffrage a
“trust,” not a “right.”122 Mill writes of the citizen, “[t]he suffrage is
indeed due to him, among other reasons, as a means to his own protection,
but only against treatment from which he is equally bound . . . to protect
every one of his fellow-citizens.”123 The suffrage enabled citizens to
protect themselves against misrule, but also symbolized each citizen’s
duty not to harm his fellows.
It should not surprise us that in times when women, servants,
soldiers, and men without property were generally barred from politics,
criminals were precluded from voting. What is important here is the
reasoning behind the exclusion: political power was understood as a
privilege of full membership in the compact, and the criminal forfeited all
liberties and protections made possible by the social contract. That
reasoning would be adopted by important American thinkers.
2. THE CONTRACT IN AMERICA
Early American suffrage law reflected a blend of ideological
principles.124 Historians and political scientists continue to explore the
121 . JEAN-JACQUES ROUSSEAU, BASIC POLITICAL WRITINGS 159 (Donald A.
Cress ed. & trans., Hackett Publ’g. 1987) (1762). As against Locke, Rousseau is often
identified as a republican thinker, because of his exaltation of the public sphere, his
emphasis on the power and pre-eminence of the “general will,” and his belief that the
“alienation” of rights and goods by individuals to the public increases the well-being of
those individuals. See id. at 152, 162, 198. This Article is interested here in Rousseau as
contract theorist. Rousseau did have some influence on political thought in the young
United States, though not as much as Locke, Montesquieu, and Sidney. See Morton J.
Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. &
MARY L. REV. 57, 71-72 (1987).
122 .See MILL, supra note 15, at 324. Mill explicitly links the social capacity for
self-rule with a willingness to punish those who break the law: he argues that “a people
must be considered unfit for more than a limited and qualified freedom, who will not
cooperate actively with the law and the public authorities in the repression of evil-doers.”
Id. at 192. Contemporary American democracy as a whole might fail Mill’s test:
“representative institutions are of little value and may be a mere instrument of tyranny . . .
when the generality of electors are not sufficiently interested . . . to give their vote.” Id.
123 .Id. at 324. Here Mill, like Locke, argues that in each man lies the power and
the duty to punish transgressors. Similarly, Rousseau argues for the “total alienation of
each associate, together with all of his rights, to the entire community,” and claims that
each man gains by this “a greater amount of force to preserve what he has.” ROUSSEAU,
supra note 121, at 148.
124 . Contract theory mixed early with the republican emphasis on virtue, as one
account of morally-loaded seventeenth-century New England criminal disenfranchisement
law makes clear: the colonists “regarded those who lived in their communities as having
made a free choice to do so and thus obligated to obey the rules. A man who qualified as a
freeman held rights that could be forfeited if he violated the obligation.” CHAPIN, supra
2002:1045 “Civil Death 31
liberal and republican character of the American founding125 and to
ascertain the influence of Locke and other European theorists.126 Thomas
Jefferson, like others, drew on social-contract notions of consent in his
view of the suffrage,127 and Chief Justice John Jay wrote in 1793 that
“[h]e is not a good citizen who violates his contract with society.”128
Thomas Paine, the highly democratic pamphleteer, illustrated the power
of contract thinking in early American suffrage theory—couched in a
denunciation of the property test. Paine wrote:
The only ground upon which exclusion from the right of voting
is consistent with justice, would be to inflict it as a punishment
note 52, at 54. See supra notes 48-55 and accompanying text for discussion of colonial
American disenfranchisement law.
125 . Representative works include BAILYN, supra note 17; CIVIC IDEALS, supra
note 11; JOHN PATRICK DIGGINS, THE LOST SOUL OF AMERICAN POLITICS (1984); and
JAMES A. MORONE, THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMIT OF
AMERICAN GOVERNMENT (1998); and WOOD, supra note 16. Scholars have moved away
from what historian Daniel T. Rodgers has described as the notion that liberalism and
republicanism were incompatible paradigms. See DANIEL T. RODGERS, CONTESTED
TRUTHS 9 (1998).
126 . Locke’s influence on Jefferson in particular has drawn a good deal of
attention. Late in life, Jefferson wrote that the Declaration of Independence merely
“place[d] before mankind the common sense of the subject,” and was not “copied from
any particular and previous writing.” Letter from Thomas Jefferson to Henry Lee (May 8,
1825), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 656 (Adrienne Koch
& William Peden eds., 1993) [hereinafter SELECTED WRITINGS]. But in the same letter, he
claimed the authority of several “elementary books of public right, as Aristotle, Cicero,
Locke, Sidney, etc.” Id. at 657. In a 1790 letter to a student, Jefferson wrote “Locke’s
little book on Government, is perfect as far as it goes.” Letter from Thomas Jefferson to
Thomas Mann Randolph (May 30, 1790), in SELECTED WRITINGS, supra, 456; see also
DIGGINS, supra note 125, at 32 (outlining the “controversy” over Locke’s influence on
Jefferson and others); GARRETT WARD SHELDON, THE POLITICAL PHILOSOPHY OF
THOMAS JEFFERSON 46-49 (1991) (offering tables listing textual similarities between
Locke’s Second Treatise and the Declaration of Independence).
127 . One authority writes of early American suffrage theory that “[f]or society to
function smoothly, for the social contract to operate, people had to be given the
opportunity . . . to consent to or oppose laws.” KEYSSAR, supra note 35, at 13-14.
Jefferson argued that every man who paid his due to society, whether he “fights or pays,”
should “exercise his just and equal right in . . . election.” Letter from Thomas Jefferson to
Samuel Kercheval (July 12, 1816), in THOMAS JEFFERSON, POLITICAL WRITINGS 212
(Joyce Appleby & Terence Ball eds., 1999). This reasoning would seem to exclude the
incarcerated, who neither “fight nor pay,” but not former offenders who either served in
the army or paid taxes. When Jefferson named specifically those ineligible for the
franchise, he singled out “infants,” “women,” and “slaves,” and did not see fit to name
criminals. See Letter from Thomas Jefferson to Samuel Kercheval (Sept. 5, 1816), in
SELECTED WRITINGS, supra note 126, at 218. The full passage aptly illustrates the danger
of treating Jefferson as an authority on the principles modern suffrage law should follow.
Jefferson would prohibit from voting and from participation in the “deliberations” of
government:
1. Infants, until arrived at years of discretion. 2. Women, who to prevent
depravation of morals and ambiguity of issue, could not mix promiscuously in
32 WISCONSIN LAW REVIEW
for a certain time upon those who should propose to take away
that right from others. . . . The proposal therefore to disfranchise
any class of men is as criminal as the proposal to take away
property. . . . The right which I enjoy becomes my duty to
guarantee it to another, and he to me; and those who violate the
duty justly incur a forfeiture of the right.129
Paine would disenfranchise those who try to deprive others of the right to
vote—by which he means advocates of the property test. His point may
have been satirical, but Paine did argue that those who failed to
“guarantee” the rights of others should temporarily forfeit the vote.
A generation after Paine, Alexis de Tocqueville found that Americans
not only employed Lockean ideas in their view of crime and criminals,
but took those principles more seriously than did Europeans. Compared
to Europe, Tocqueville observed, America had relatively few police and a
small criminal justice infrastructure, but “in no country does crime more
rarely elude punishment.”130 He found an answer to this paradox in the
public view of criminals:
The reason is that everyone conceives himself to be interested in
furnishing evidence of the crime and in seizing the delinquent. . . .
In Europe a criminal is an unhappy man who is struggling for his
life against the agents of power, while the people are merely a
spectator of the conflict; in America he is looked upon as an
enemy of the human race, and the whole of mankind is against
him.131
the public meetings of men. 3. Slaves, from whom the unfortunate state of
things with us takes away the rights of will and of property. Those then who
have no will could be permitted to exercise none in the popular assembly.
Id.
128 . Henfield’s Case, 11 F. Cas. 1099, 1105 (C.C.D. Pa. 1793).
129 . THOMAS PAINE, Dissertation on the First Principles of Government, in 3
THE WRITINGS OF THOMAS PAINE 267 (Moncure Daniel Conway ed. 1996) (1795).
Rogers M. Smith has pointed out that Paine merely “dramatize[d]” Locke’s views when he
urged his readers “to imagine sturdy free and equal men in a state of nature sitting around
a tree to create a state.” See CIVIC IDEALS, supra note 11, at 79.
130 . 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 95 (Phillips Bradley
ed., Vintage Books 1990) (1835).
131 .Id. Thomas L. Dumm argues that Tocqueville’s story helps us understand
the profound relationship between American ideas of punishment and democracy. Dumm
writes, “Tocqueville came to the United States to study the prison, and left to write
Democracy in America. No irony need be made of that coincidence, nor should anyone be
surprised. After all, the penitentiary was the ideal liberal democratic institution.” THOMAS
L. DUMM, DEMOCRACY AND PUNISHMENT 140 (1987); see also id. at 112 (arguing of the
penitentiary that “[t]he proposition that all are fundamentally alone is the most extremely
liberal aspect of what was designed as a liberal institution”).
Dumm is not the first to point out that despite its purported aim of limiting the
exercise of coercive power, contract theory’s relocation of the right to punish from
2002:1045 “Civil Death 33
If such an approach to crime was evident in the attitudes of the
nineteenth-century American public, the influence of Locke on twentieth-
century jurists’ views of criminal disenfranchisement law has been still
more clear. In one influential decision, Green v. Board of Elections,
Judge Friendly upheld the disenfranchisement of ex-felons in familiar
liberal terms.132 Friendly wrote, “[a] man who breaks the laws he has
authorized his agent to make for his own governance could fairly have
been thought to have abandoned the right to participate in further
administering of the compact.”133 Friendly noted:
The early exclusion of felons from the franchise by many states
could well have rested on Locke’s concept, so influential at the
time, that by entering into society every man “authorizes the
society, or . . . the legislature thereof, to make laws for him as
the public good of the society shall require, to the execution
whereof his own assistance (as to his own decrees) is due.”134
In another well-known case, Shepherd v. Trevino,135 the Fifth Circuit
observed that felons “have breached the social contract and, like insane
persons, have raised questions about their ability to vote responsibly.”136
Despite Shepherd’s reference to “insane persons,” the belief that the
criminal “breach” is simply a voluntary, self-interested action is implicit
in the contractarian case for disenfranchisement. As a federal court ruled
in Wesley v. Collins,137 “[f]elons are not disenfranchised based on any
immutable characteristic, such as race, but on their conscious decision to
commit an act for which they assume the risks of detection and
punishment.”138
3. LIBERALISM APPLIED: THE FEAR OFSUBVERSIVEVOTING
sovereign to society—“every man hath a right to punish the offender,” as Locke put it—
effected instead an expansion of such power. See LOCKE, supra note 15, § 8, at 10; see,
e.g., MICHEL FOUCAULT, DISCIPLINE AND PUNISH 90 (Alan Sheridan trans., Vintage Ed.
1995) (1978) (arguing that under the contract, the right to punish “finds itself recombined
with elements so strong that it becomes almost more to be feared . . . it [becomes] a
terrible ‘super power’”).
132 .See 380 F.2d at 451-52.
133 .Id. at 451.
134 .Id. (quoting LOCKE, supra note 15, § 89, at 48).
135 . 575 F.2d 1110 (5th Cir. 1978).
136 .Id. at 1115.
137 . Wesley v. Collins, 605 F. Supp. 802, 813 (M.D. Tenn. 1985).
138 .Id.
34 WISCONSIN LAW REVIEW
In addition to these theoretical points, some prominent defenders of
criminal disenfranchisement today offer a complementary practical reason
to support the automatic removal of all felons from the franchise. This is
the fear that criminals will vote, presumably in concert, to weaken the
criminal law and law enforcement—that is, they will vote in a way
“subversive of the interests of an orderly society.”139 This concern with
“subversive voting” by offenders rests on a liberal understanding of
voting: the convict, like everyone else, is rational, self-interested, and
instrumental in his political behavior.140 Liberals often portray the ballot
as a tool citizens use to “protect their interests,”141 but also may depict
voting as an instrumental act through which citizens control each other.
“[T]he exercise of the vote,” as one supporter of felon disenfranchisement
wrote, “is understood not merely as conferring the right to govern oneself,
but a right to share in the governing of others.”142 Felons, this author
continues, have “reject[ed] the right of others to govern them,” and
therefore are properly denied “the right to govern others.”143 A sharp
statement of this point comes in Green, where Judge Friendly wrote,
139 .Richardson, 418 U.S. at 81 (Marshall, J., dissenting). For explanations of
this hypothesis, see also Harrison, supra note 36, at 37, and Note, supra note 8, at 1302-
03. I explain a second policy argument, the fear that ex-convicts will be more likely than
others to commit vote fraud, infra Part II.B.2. Its emphasis on the character of the
criminal and its non-specific concern with unlawful behavior makes the vote-fraud claim
more republican than liberal, as those terms are used here.
140 . For detailed analysis of instrumental theories of voting in American law, see
Winkler, supra note 106, at 341-46. As Winkler notes, the instrumental understanding
depicts the vote “as a societal tool for exerting political power” and “a means of pursuing
informed political choices in an effort to direct governmental institutions.” Id. at 331; see
also ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 36-39 (1957) (explaining
“the basic logic of voting” by hypothesizing the utility-maximizing decisions of individual
voters, who make voting choices by calculating their “utility income” from different
government activities).
141 . Donald W. Rogers, The Right to Vote in American History, in VOTING AND
THE SPIRIT OF AMERICAN DEMOCRACY 3, 9 (Donald W. Rogers ed., 1992).
142 . John Silber, Mass. Inmates Shouldn’t Vote, BOSTON HERALD, Oct. 24, 2000,
at 33; see also Clegg, supra note 10, at 172 (arguing that “those who would make the laws
for others . . . [must] be willing to follow those laws themselves”). Elsewhere, Clegg has
framed this argument in a way which depicts the ballot not only as a tool of control, but
also as a dangerous weapon. See Carter, supra note 1, at 18 (quoting Clegg arguing that
“[w]e don’t let ex-felons have guns, and we don’t want child molesters teaching in
elementary schools,” “[a]nd we don’t want people who are not willing to follow the law to
be able to make the law, through referenda or electing lawmakers”).
143 . Silber, supra note 142, at 33. Massachusetts lawmaker Francis Marini put
this point succinctly when he argued that prisoners “are incapable of running their own
lives,” and “should not be allowed to run ours.” Michael Crowley, Lawmakers Favor Ban
of Felons’ Voting Rights, BOSTON GLOBE, June 29, 2000, at B3; see also SANFORD
LEVINSON, CONSTITUTIONAL FAITH 134 (1988) (suggesting as rationale for felon
disenfranchisement that “we might . . . expect at least fidelity to law from those who
demand a role in making political decisions”). Levinson does not indicate support for the
policy, but merely explains a possible rationale.
2002:1045 “Civil Death 35
[I]t can scarcely be deemed unreasonable for a state to decide
that perpetrators of serious crimes shall not take part in electing
the legislators who make the laws, the executives who enforce
these, the prosecutors who must try them for further violations,
or the judges who are to consider their cases. . . . A contention
that the equal protection clause requires [a state] to allow
convicted mafiosi to vote for district attorneys or judges would
not only be without merit but as obviously so as anything can
be.144
Prominent contemporary supporters of indefinite disenfranchisement
emphasize the subversive-voting hypothesis quite heavily. Todd F.
Gaziano of the Heritage Foundation told Congress in 1999 that allowing
ex-convicts to vote “could have a perverse effect on the ability of law
abiding citizens to reduce the deadly and debilitating crime in their
communities.”145 Roger Clegg, counsel for the Center for Equal
Opportunity, seconded Gaziano’s concern. Observing that “[m]uch has
been made of the high percentage of criminals . . . and . . . disenfranchised
people in some communities,”146 Clegg testified that “this is an argument
against reenfranchisement, because there accordingly exists a voting bloc
that could create real problems by skewing election results.”147
Western political theorists and American authors alike have long
believed that the social-contract view of society’s origins and character,
coupled with an understanding of crime as reasoned and voluntary,
legitimate the exclusion of convicts from the franchise. Contemporary
scholars, meanwhile, disagree over how deeply Rawlsian liberalism is
committed to criminal disenfranchisement.148 But the social-contract
144 . 380 F.2d at 451-52 (citation omitted).
145 .See Civic Participation Act Hearing, supra note 37, at 44 (prepared
statement of Todd F. Gaziano, Senior Fellow in Legal Studies, the Heritage Foundation).
Gaziano argued, “[c]riminal disenfranchisement allows citizens to decide law enforcement
issues without the dilution of voters who are deemed either to be less trustworthy or to
have waived their right to participate in those decisions.” Id.
146 .See Civic Participation Act Hearing, supra note 37, at 17 (prepared
statement of Roger Clegg, Vice President and General Counsel, Center for Equal
Opportunity).
147 .Id. Elsewhere, Clegg argues that if indefinite disenfranchisement laws did
not exist, “there would be a real danger of creating an anti-law enforcement voting bloc in
municipal elections.” Clegg, supra note 10, at 177. Neither Clegg nor Guziano offered
evidence to support this theory. Green is a very influential criminal-disenfranchisement
decision, and commentators such as Silber, Gaziano, and Clegg occupy positions of
considerable influence in American democracy. However, the Author has not found other
authors in liberal constitutional or political theory advancing the “subversive voting”
rationale for criminal disenfranchisement.
148 . Two assessments of American criminal disenfranchisement have focused on
the liberalism of John Rawls. See Manfredi, supra note 4, at 296-98 (arguing that criminal
disenfranchisement is fully defensible on Rawlsian terms so long as the right to vote is
36 WISCONSIN LAW REVIEW
approach continues to supply the language in which many Americans—
including some civil libertarians—defend the practice today.149
B. The Republican Case for Criminal Disenfranchisement
Republicanism, like liberalism, offers a defense of criminal
disenfranchisement built on its understandings of the nature of political
society. The republican case begins with a belief in the literal “body”
formed by society—the res publica, or “public thing”—and a demand for
virtue in the citizens who constitute that entity through their political
activity. While republican and liberal principles are not exclusive,
quintessentially republican concepts have long played a vital part in
American criminal-disenfranchisement law.
Early American disenfranchisement laws, as discussed above,
exhibited a fundamentally republican character.150 Returning to their
example helps clarify the important differences in reasoning which exist
presumptive and criminal disenfranchisement is applied universally and not solely to
members of any ascriptive class); Furman, supra note 10, at 1198, 1214, 1229 (arguing
that criminal disenfranchisement represents “an ambivalence deep within modern
liberalism’s normative ideals,” and that Rawlsian liberalism must halt its “consensual
drift” and increase its toleration of “dissonance”). Manfredi’s essay is important because
so few contemporary scholars have developed careful theoretical arguments for criminal
disenfranchisement. Manfredi acknowledges, however, that lifetime loss of the vote is “at
least partially consistent” with liberal principles. Manfredi, supra note 4, at 297.
Meanwhile, his use of Rawlsian definitions of justice to support disenfranchisement seems
to neglect other important attributes of Rawls’ ideal liberal polity. For example, Rawls
writes of criminal sanctions, “[t]hese mechanisms will seldom be invoked and will
comprise but a minor part of the social scheme,” and “in a well-ordered society sanctions
are not severe and may never need to be imposed.” RAWLS, supra note 15, at 240, 577.
Finally, Manfredi’s claim that liberal regimes can properly “require that their citizens be
other-regarding and future-oriented” might offend those liberals who believe voters may
act as selfishly as they wish, and who are not eager to begin testing the character of other
citizens. Manfredi, supra note 4, at 299.
149 . Arguing in the fall of 2000 for an amendment to the Massachusetts state
constitution barring incarcerated felons from voting, one prominent commentator wrote
that felons have “broken the social contract that binds citizens together.” Silber, supra
note 142. In 1998, when a New Hampshire inmate successfully challenged as
unconstitutional a state law that disenfranchised incarcerated criminals, the state argued on
appeal that it had a legitimate interest in restricting the vote to those who have abided by
“the social contract that forms the foundation of a representative democracy.” Katharine
Webster, State Supreme Court Says Imprisoned Felons Cannot Vote (Mar. 24, 2000),
available at Westlaw, Associated Press Newswires.
For a civil libertarian’s defense of criminal disenfranchisement on social-contract
grounds, see JAY A. SIGLER, CIVIL RIGHTS IN AMERICA 1500 TO THE PRESENT 383-84
(1998) (arguing that “[w]hen felons choose to violate societal laws, they break the social
contract that guarantees their fundamental rights and freedoms”). Sigler’s example is
striking because this statement follows a concise, committed explanation of how all
proposed suffrage restrictions must be measured against the “strict scrutiny” standard—a
standard which Sigler abandons, a few pages later, in endorsing criminal
disenfranchisement. Id. at 380, 383-84.
150 .See supra notes 48-55 and accompanying text.
2002:1045 “Civil Death 37
between the liberal and republican approaches to the practice. Colonial
communities were intensely “corporate” in character: they understood the
polity not simply as an agreement among self-interested, isolated
individuals but as a very real entity, whose health and character were vital
matters of concern, requiring constant vigilance.151 It was a fragile,
delicate body which sickened easily;152 virtue was its “animating
principle,”153 and criminals were barred from politics to prevent illness
from creeping in. Those who had committed “shamefull and vitious”154
offenses, transgressions which revealed corrupt moral character, were
judged most politically dangerous. Two complementary values emerge: a
strong definition of the public good, and a firm belief in the importance of
specific virtues in the individual. Republicans, then as now, believe that
the health of the polity depends on the character of those who comprise it.
1. PUBLIC VIRTUES, PRIVATE MORALS
The republican belief that participation in political life demands civic
virtue draws on the work of the eighteenth-century French philosopher
Montesquieu, whose ideas heavily influenced the American founders.155
Popular government, Montesquieu wrote, requires more virtue than does
monarchy,156 and the “division of those who have a right to suffrage” and
151 .See PHILIP ABBOTT, POLITICAL THOUGHT IN AMERICA 21 (2d ed. 1999). As
Robert N. Bellah and his colleagues point out, this approach offers a particular answer to
the question of what fundamentally exists in a state. The biblical and republican traditions
in American thought, Bellah and his colleagues write, have shared what they call “social
realism,” or “the view that society is as real as individuals.” ROBERT N. BELLAH ET AL.,
HABITS OF THE HEART 334 (1986). The “social realist” view is contrasted with liberal
“ontological individualism,” which is “a belief that the individual has a primary reality
whereas society is a second-order, derived or artificial construct.” Id. Political scientist
James A. Morone writes that the republican ideal is “not simply the sum of individual
private interests, but a distinct public interest with an objective existence of its own.”
MORONE, supra note 125, at 41. Another authority writes that republicanism historically
has “proceeded from an objective conception of the public interest and a state that could
legitimately promote virtue.” Horwitz, supra note 121, at 67.
152 152.See BAILYN, supra note 17, at 344 (noting that republics were “necessarily
delicate structures”); APPLEBY, supra note 14, at 278 (observing that republican historians
emphasize “the fragility of civil order and the ferocity of uncivil passions”); and MORONE,
supra note 125, at 43 (noting that republics were understood as the “most fragile form of
government”).
153 . BAILYN, supra note 17, at 344; see also Interest Groups, supra note 17, at 31
(arguing that the “animating principle” of republicanism in the founding period “was civic
virtue”).
154 .See supra note 54 and accompanying text.
155 . Bernard Bailyn finds that Montesquieu was the “chief authority” cited by the
American founders, and that his name “recurs far more often than that of any other
authority in all of the vast literature on the Constitution.” BAILYN, supra note 17, at 344-
45.
38 WISCONSIN LAW REVIEW
the “manner of giving this suffrage” are both “fundamental.”157 The core
of virtue lies in “the identification of one’s own good with the common
good,”158 as one authority interprets Montesquieu, and the insistence that
citizens “put aside private interest for public good.”159
The case for criminal disenfranchisement operating from this strong,
compulsory understanding of virtue and the common good is developed
most clearly in Washington v. State, an 1884 Alabama case which
declares:
The manifest purpose [of denying suffrage to ex-convicts] is to
preserve the purity of the ballot box, which is the only sure
foundation of republican liberty, and which needs protection
against the invasion of corruption, just as much as against that
of ignorance, incapacity, or tyranny. The evil infection of the
one is not more fatal than that of the other. The presumption is,
that one rendered infamous by conviction of felony, or other
base offense indicative of great moral turpitude, is unfit to
exercise the privilege of suffrage . . . upon terms of equality
with freemen who are clothed by the State with the toga of
political citizenship. It is proper, therefore, that this class
should be denied a right, the exercise of which might sometimes
hazard the welfare of communities, if not that of the State itself,
at least in close political contests. The exclusion [is] imposed
for protection, and not for punishment.160
There are important differences between this logic and that of, for
example, Judge Friendly’s decision in Green. Green concentrated on the
individual’s infraction and the proper sanction which that misconduct
brings to him: he forfeits the “right to participate in . . . administering the
compact.”161 But Washington focused on “protection” of a public entity
the “ballot box,” the “communities,” the “State.” 162 This public body
must be kept pure, free from “evil infection” or “the invasion of
156 .See 1 BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 20 (Thomas
Nugent trans., Hafner Press 1949) (1748). Montesquieu writes, “[f]or it is clear that in a
monarchy . . . there is less need of virtue than in a popular government, where the person
intrusted with the execution of the laws is sensible of his being subject to their direction.”
Id.
157 .Id. at 11.
158 . BELLAH ET AL., supra note 151, at 254.
159 . MORONE, supra note 125, at 42.
160 .Washington, 75 Ala. at 585. This is the best-known of several cases from
this period. See also Boyd v. Mills, 37 P. 16 (Kan. 1894); Shepherd v. Grimmet, 31 P. 793
(Idaho 1892).
161 .Green, 380 F.2d at 451.
162 . 75 Ala. at 585.
2002:1045 “Civil Death 39
corruption” by the “unfit.” 163 For republicans, disenfranchisement is a
kind of political quarantine, a way of preserving the health of the body
which is the political community.164 The U.S. Supreme Court employed
such an analogy in New York v. Miln when it observed that it is as
“necessary” for states to protect themselves with “precautionary measures
against the moral pestilence of paupers, vagabonds, and possibly convicts,
as it is to guard against the physical pestilence.”165 Both Washington and
Miln are creatures of nineteenth-century law, which one authority has
found to be “replete with morals restrictions.”166 The targets of such
restrictions were often people whom the Illinois Supreme Court called an
“inferior class . . . those degraded by crime or other vicious indulgences
of the passions.”167 Meanwhile, crimes such as perjury, forgery, bribery,
larceny, and dueling were frequently singled out for the sanction of
disenfranchisement in the nineteenth century.168
But twentieth-century jurists have continued to emphasize both
public morality and the criminal character in evaluating criminal
disenfranchisement law. As the Supreme Court of Missouri put it, the
163 .Id.
164 . Lawrence M. Friedman writes in another context of prisons as a way to
“quarantine” the “criminal class.” LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN
LAW, 601 (2d ed. 1985). The belief that a tainted individual can stain the entire body
politic seems to find a great deal of support among Americans today. The General Social
Survey asked over one-thousand Americans between 1988 and 1991 whether they agreed
or disagreed that “[i]mmoral actions by one person can corrupt society in general.” Over
half of those surveyed that expressed any opinion agreed or strongly agreed. See Inter-
University Consortium for Political and Soc. Research, General Social Survey, at
http://www.icpsr.umich.edu:8080/GSS/homepage.htm (last visited Nov. 4, 2002). About
51% of respondents checked either “agree strongly” or “agree somewhat;” about 46%
answered either “disagree strongly” or “disagree somewhat.” Id.
165 . 36 U.S. (11 Pet.) 357, 369 (1837), overruled by Edwards v. California, 314
U.S. 160 (1941).
166 . WILLIAM J. NOVAK, THE PEOPLES WELFARE: LAW AND REGULATION IN
NINETEENTH-CENTURY AMERICA 151-152, 155 (1996); see also id. at 154 (arguing that in
nineteenth-century America “morality . . . was not a private, individual, or discretionary
matter” but rather “a responsibility of government and a quid pro quo of community
membership”). A famous pair of visiting French aristocrats remarked that “many offenses
against religion and morals, such as blasphemy, incest, fornication, drunkenness, etc., are
in the United States repressed by severe punishments; [in France] they are unpunished.”
GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY SYSTEM IN
THE UNITED STATES AND ITS APPLICATION IN FRANCE 100 (Francis Lieber trans., Southern
Ill. Univ. Press 1964) (1833). The perceived need to protect society against moral
infection may help explain why when Congress wrote the Immigration Act of 1875, it
precluded overseas felons and prostitutes from immigration. See E. P. HUTCHINSON,
LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, at 65-66 (1981).
167 . Frorer v. People, 141 Ill. 171, 186-87 (1892); see also Anderson v. Winfree,
4 S.W. 351, 353 (Ky. 1887) (disqualifying from voting those convicted of offenses “which
are inconsistent with the common principles of honesty and humanity, and convict the
perpetrator of degradation, depravity, and moral turpitude”).
168 . See supra notes 69-71 and accompanying text.
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“hight [sic] privilege” of voting must be available to “only those who
have lived up to certain minimum moral and legal standards.”169 A 1971
decision, Kronlund v. Honstein,170 upheld specifically the
disenfranchisement of those “convicted of crimes of moral turpitude.”171
And in 1966, the Supreme Court of California ruled that only “crimes
involving moral corruption and dishonesty” warranted permanent
disenfranchisement.172 “The [judicial] inquiry,” the court ruled, “must
focus more precisely on the nature of the crime itself.”173
These rulings demonstrate that procedural, contractarian liberalism
alone is not sufficient to explain criminal disenfranchisement in the
United States. For these opinions reflect a judicial concern with
character, and with particular forms of sickness174 which are held to be
more dangerous than others to the body politic. Common to the earliest
American laws barring convicts from voting, this idea continues to shape
discussions of disenfranchisement today.175
Despite Washingtons view that voting rights are stripped from
offenders “for protection, and not for punishment,” criminal
disenfranchisement must be understood both as a regulation of the
169 .Barrett, 175 S.W.2d at 788.
170 . 327 F. Supp. 71, 73 (N.D. Ga. 1971).
171 .Id.
172 . Otsuka v. Hite, 414 P.2d 412, 414 (Cal. 1966). Otsuka involved the voting
rights of plaintiffs convicted twenty years earlier of refusing to serve in the armed forces
because of conscientious objections. Id.
173 .Id. As one critic of disenfranchisement law has put it, this leg of the case for
barring convicts from the polls “rests not upon what a criminal has done, but upon whom
he has shown himself to be.” Note, supra note 8, at 1307.
174 .See generally Jacob Katz Cogan, Note, The Look Within: Property, Capacity,
and Suffrage in Nineteenth-Century America, 107 YALE L.J. 473 (1997). Cogan argues
that American theories of suffrage underwent a “change in the normative perspective” in
the nineteenth century, one which turned away from “external” qualifications such as the
property test and paid more attention to “the structure of the mind and in the qualities of
the heart.” Id. at 474, 482, 484.
175 . For example, Delaware permits most ex-convicts to win restoration of voting
rights five years after they conclude their sentence, but sex offenders—as well as those
convicted of murder and manslaughter—are not eligible for restoration. DEL. CONST. art.
V, § 2, amended by 72 Del. Laws 356 (1999). Similarly, a proposed 1998 amendment to
the Massachusetts state constitution eschewed felony conviction as the disenfranchisement
cutoff point, instead singling out those incarcerated for “murder[], rape, other sex related
offenses or the possession or sale of controlled substances.” 1998 J. HOUSE REPS.
COMMONWEALTH MASS. 2161 (July 28, 1998). The proposal was defeated in favor of an
amendment barring all incarcerated felons from voting. Id. But in the proposal, as in the
new law of Delaware, we can hear an echo of the earliest American criminal-
disenfranchisement laws: the content of the crime matters a great deal, with sex offenders
and those convicted of drug crimes depicted as politically dangerous, while many other
felons are not. The felon-disenfranchisement amendment was ratified by the electorate in
November of 2000. See MASS. CONST. art. III (stating that “persons who are incarcerated
in a correctional facility due to felony conviction” are ineligible to vote); see also MASS.
GEN. LAWS ch. 51, § 1 (2001).
2002:1045 “Civil Death 41
franchise and as a form of punishment.176 Republicans may make an
argument for lifetime disenfranchisement which unites the two by
drawing on theories of “expressive punishment.” Any form of
punishment, advocates of “expressive” or “shaming” penalties point out,
is a “special social convention” that reflects “deeply rooted public
understandings” and signifies society’s “moral condemnation.”177 Bar
criminals from voting, republicans may argue, and express our great
esteem for political participation. Allowing criminals to vote, conversely,
only further demeans the electoral process—and the polity itself.
The republican understanding of voting is crucial to this argument.
For republicans, casting a ballot is not merely instrumental, self-interested
conduct, but is a vital act of civic participation; the decline in turnout and
in public esteem for elections today marks the low value of politics in
American public life.178 Lifetime disenfranchisement as punishment,
176 . See supra notes 35-38 and accompanying text.
177 . Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV.
591, 593 (1996). Kahan argues that “[s]haming penalties unambiguously express
condemnation and are a feasible alternative to imprisonment for many offenses.” Id. at
594. But see Michael Tonry, Rethinking Unthinkable Punishment Policies in America, 46
UCLA L. REV. 1751, 1764, 1789 (1999) (arguing that only a “continuous moral panic” in
the United States today explains inhumane criminal justice policies, and that shaming
penalties wrongly direct punishment “primarily at the community and not at the
offender”); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions, 107 YALE
L.J. 1055, 1059, 1089 (1998) (arguing that the damage caused by shaming sanctions is not
their effect on the offender but on society, and that shaming sanctions are “a species of
official lynch justice”). This Article finds expressive punishment’s emphasis on public
expressions of “moral condemnation” to reflect a republican sensibility, but republicanism
has no monopoly on the “expressive element” of sentencing. See Manfredi, supra note 4,
at 291 (arguing that the “expressive element” of criminal disenfranchisement makes it
compatible with the principles of Rawlsian liberal justice).
Of course, public shaming in criminal justice is not new. Cesare Beccaria wrote in
1764:Personal injuries which damage honour, that is, that proper esteem that a
citizen can rightly expect from others, ought to be punished with public
disgrace. This disgrace is a sign of public disapproval, which deprives the
malefactor of public goodwill, of the nation’s confidence, and of that sense
almost of brotherhood which society inspires.
CESARE BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS 54-55
(Richard Bellamy, ed., Richard Devies, trans., Cambridge Univ. Press, 1995) (1764).
178 .See GLENDON supra note 17, at 128. Glendon laments that in a recent poll,
only twelve percent of young people mentioned voting as part of what makes a “good
citizen.” Glendon discusses these problems in a chapter entitled “The Missing Dimension
of Sociality.” Political theorist Benjamin R. Barber writes that voting should be “a rite as
well as a right,” but in America it has “been stripped of almost all pomp and ritual.”
BENJAMIN R. BARBER, STRONG DEMOCRACY 187-88 (1984). Barber describes voting
today as being:
Rather like using a public toilet: we wait in line with a crowd in order to close
ourselves up in a small compartment where we can relieve ourselves in
solitude and in privacy of our burden, pull a lever, and then, yielding to the
next in line, go silently home.
42 WISCONSIN LAW REVIEW
republicans may argue, reminds us to cherish our