Author: Noah Busbee
Over five million Americans were ineligible to vote in the 2020 elections due to possessing the status of a convicted felon. America indeed has some of the harshest felon disenfranchisement laws, although they vary by state. Convicted felons have an unequivocal right to vote in only 2 states. In 23 states, being a felon in prison means a revocation of voting rights, although they are reinstated immediately after release. In 11 states, though, felons can lose their voting rights indefinitely for particular severe crimes (National Council of State Legislatures, 2023). Only a few other countries (New Zealand, Finland, etc.) restrict the right to vote after a prison sentence has concluded. However, in such countries, the vote is only restricted in cases of “vote corruption” (illegally buying or selling votes) (Fellner et al, 1998). In America, three-quarters of the 5 million convicted felons are neither in jail nor prison – instead serving parole, probation, or post-sentence requirements (Uggen et al, 2021). These individuals are not only walking among the citizenry but also serving under a state that is denying them political agency. This revocation of political agency is, fundamentally, a form of discrimination. Such unjust laws regarding the disenfranchisement of felons should be considerably relaxed to allow felons to vote unless, in the spirit of proportional justification, their crimes involve the manipulation of another person’s vote.
The Power of the Vote
The vote is the most important form of political expression one possesses. Voting not only submits the participants’ political will to the public but helps inform the polity of an individual’s preferences for future governance. Furthermore, voting serves as the basis of democratic equality. Living in a system in which one is subject to the rule of law and in service to the state without adequate ability to represent oneself in some form nor express one’s political agency is both an injustice and a characteristic of slavery. The disenfranchisement of felons whose crimes are unrelated to voting or did not strip that agency from another at the time of election is a pure injustice. Felons who do not meet those qualifications must be able to utilize their political agency as the vote is paramount in an individual’s right to political expression to the extent that the franchise must supersede most criminal convictions or other infringements on voting. Political agency, in this context, is the ability to express their political beliefs and further their political, social, and economic interests through a political system. Because expressing one’s political agency is necessary in upholding the tenets of a democratic polity, there ought to be an institutional inclination to uphold enfranchisement.
Civic Virtue and Disenfranchisement
The civic virtue argument is a prominent argument against the enfranchisement of felons. The civic virtue argument attempts to uphold the moral purity of a citizenry throughout the election process. The civic virtue argument concerns itself with the moral character of the people voting and specifically advocates that the voters within the citizenry should be of high integrity and moral purity. Proponents of this metric argue that felons, through committing crimes, exhibit poor character and, therefore, should not be allowed to vote. Furthermore, some claim that the motivation for barring felons from voting is that if felons were to access the franchise, they would promote candidates with “the interests of criminals” (Lopez-Guerra, 2014). Within the civic virtue argument, one must not trust a criminal to vote due to their suboptimal moral character and their untrustworthiness to uphold the modern moral standards of candidates.
The civic virtue argument has numerous faults that prove it a suboptimal justification for disenfranchisement. To begin, the idea of ‘moral character’ and the qualities that make up such a character is subjective. While proponents of civic virtue would use accordance with the rule of law as a metric for morality, there are many instances in which people of solid character, who might commit one of a variety of offenses, would be disenfranchised despite being otherwise good citizens. Examples include felony speeding, drug crimes, certain financial crimes, or even violent crimes of passion. The principles behind particular crimes leading to disenfranchisement are quite questionable. Because of this, there is a moral ambiguity in many cases that cannot be ignored.
Upholding the law as the basis for morality places justices and judges as the paramount moral figures in society. It is undoubtedly filled with contradictions and illogical precedents. Primary against the civic virtue argument is the idea that the system of disenfranchisement being legislated is ridiculous in its instantaneous nature. Taking a single frame out of someone’s life and determining their moral character as well as their ability to express political agency is beyond cruel; it is disingenuous towards those who can vote. Few, if any, people are perfect straight arrows and have abided by every law in every situation, especially given the complex American criminal code. There are some instances in which there is no justification for the commission of a particular crime. In those situations, it is necessary to examine the necessary penalties of the law. However, attempting to establish one’s moral character of a single potentially morally gray instance, whatever the motives, does not justify the deprivation of one’s ability to participate in civil society through voting.
Furthermore, there is no evidence that shows that enfranchising felons would significantly deteriorate the outcomes of elections. In fact, “the most comprehensive study at hand merely shows that felons in the United States are more likely to vote Democratic than Republican,” (Lopez-Guerra, 2014). Felons are most likely to vote in favor of their interests and alleviate negative circumstances that surround themselves and those they care about (Lopez-Guerra, 2014). Most criminals share many values and have principles and beliefs similar to non-incarcerated people. Many people commit harmless crimes every day, such as jaywalking or similar petty crimes. The line between misdemeanor and felony sentencing is extremely thin. It depends on a variety of factors, including the quality of legal representation, the number of offenses one is charged with, the amiability of the judge, remorse, et cetera (Sanabria, 2023). Along this line of reasoning, Jeffery Reiman wrote an influential article entitled ‘Liberal and republican arguments against the disenfranchisement of felons.’, Reiman notes, “both criminals and noncriminals are morally mixed—neither are wholly immoral or wholly moral… even with such statistical differences between these whole populations, those who have been convicted of felonies and those who have not are substantially overlapping groups with respect to morality,” (Reiman, 2005). Even among serial felons, there is a significant overlap of moral pillars with noncriminal citizens. The fact that both criminals and non-criminals share many values, it is impossible to draw a distinctive line on virtue alone to decide whether someone is apt enough to enter the ballot box.
While many felons deserve the reinstatement of the franchise, there are some that directly violate both the law and the ability of others to exercise their political agency. While the list of felony charges in America is extensive, only some felonies directly restrict the victims’ right to vote. Unlike the virtue argument and serving as the crux of the argument for proportional punishment, in such cases, the revocation of the vote is both appropriate and proportional to the crime. To calculate this, instead of using a measure akin to virtue, the principle of proportionality supersedes arbitration.
The foundation of proportional punishment stipulates that only those who directly inhibit, strip, or manipulate another person’s right to vote deserve the revocation of their vote along with their sentence. By removing or manipulating another’s vote and therefore changing the outcome of the election, they are denying another person or persons their political agency, and so it follows that they have theirs removed in turn. In the most extreme cases of criminal action, taking the life of another person does inhibit their ability to vote. Therefore, the revocation of the perpetrator’s right to vote is just. Harassing an individual to make a certain choice when voting can also constitute the revocation of the criminal’s vote. However, stealing some jewelry, while unacceptable and punishable, should not constitute a prohibition on the offender’s right to express their political will. Therefore, those who show a manipulation of their own vote or electoral mail fraud will have their vote duly revoked. Reiman himself concedes that this is a particularly persuasive argument for disenfranchisement of a particular minority of criminals: “Since the standard punishments of prison, parole, and probation are all limits on self-determination, and since disenfranchisement is also a limit on self-determination, there is as much fit between disenfranchisement and crime… it is compatible with just retribution,” (Reiman, 9). This policy, following these justifications, would be adequate in advocating for stripping the vote from criminals who commit these select crimes. The unique significance of the vote in one’s expression of political agency warrants a similarly unique addendum to an individual’s sentencing. By directly inhibiting the political agency of others, there is an adequate proportional justification for the removal of their vote.
The disenfranchisement of felons who have not deliberately stripped the political agency of others does not deserve the revocation of their vote due to a previously unrelated criminal action. Proportional punishment delineates the acceptable circumstances in which one’s ability to vote can be revoked. This commentary offers the most logical and appropriate way to determine the franchise eligibility of felons.
Elections and Campaigns: Felon voting rights. (2023, April 6). National Conference of State Legislatures. https://www.ncsl.org/elections-and-campaigns/felon-voting-rights
Fellner, J., & Mauer, M. (1998). Disenfranchisement in other countries – losing the vote: The impact of felony disenfranchisement laws in the United States. LOSING THE VOTE: The Impact of Felony Disenfranchisement Laws in the United States; The Sentencing Project. https://www.hrw.org/legacy/reports98/vote/usvot98o-04.htm
López-Guerra, C. (2014). Democracy and Disenfranchisement: The Morality of Electoral Exclusions. Oxford University Press. https://doi.org/10.1093/acprof:oso/9780198705789.001.0001
Pulido-Nava, C. U., Ryan Larson, Sarah Shannon and Arleth. (2020, October 30). Estimates of people denied voting rights due to a felony. The Sentencing Project. https://www.sentencingproject.org/reports/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
Reiman, J. (2005). Liberal and republican arguments against the disenfranchisement of felons. Criminal Justice Ethics, 24(1), 3–18. https://doi.org/10.1080/0731129X.2005.9992176
Sanabria, L. (2023, September 13). Factors Considered in Determining Sentences. FindLaw, 1. https://www.findlaw.com/criminal/criminal-procedure/factors-considered-in-determining-sentences.html
About the Author: Noah Busbee is a recent graduate of the University of Richmond, finishing magna cum laude with a double major in PPEL (Philosophy, Politics, Economics, and Law), with a concentration in Politics and History. Noah’s interests reside primarily in researching contemporary and modern political philosophy. Specifically, Noah hopes to focus on political-legal theory, the ethics of punishment, the impact of the criminal justice system on family structures and functions, and the political theory of Libertarianism.