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Voting Behind Bars: An Argument for

Voting by Prisoners

MARC MAUER*

A. Overview of Felony Disenfranchisement in the United

States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 R
B. The Modern-Day Movement for Disenfranchisement
Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 R
C. Challenging Prisoner Disenfranchisement: The
Philosophical Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 R
1. Is Prison “Different?” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 R
2. Disenfranchisement as an Aspect of Punishment . . . 556 R
3. Prisoners as “Untrustworthy” . . . . . . . . . . . . . . . . . . . . . . . 556 R
4. Impact on Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557 R
D. Disenfranchisement of Prisoners Is Counterproductive
for Democracy and Public Safety . . . . . . . . . . . . . . . . . . . . . . . 559 R
1. Limitations on the Electorate . . . . . . . . . . . . . . . . . . . . . . . 559 R
2. Enhanced Racial Disparity . . . . . . . . . . . . . . . . . . . . . . . . . 560 R
3. Exacerbating Challenges for Reentry . . . . . . . . . . . . . . . 562 R
E. International Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 R
F. Moving Toward Prisoner Enfranchisement . . . . . . . . . . . . . . 565 R

The vote of each and every citizen is a badge of dignity and per-
sonhood. Quite literally, it says that everybody counts. In a country
of great disparities of wealth and power it declares that whoever we
are, whether rich or poor, exalted or disgraced, we all belong to the
same democratic South African nation; that our destinies are inter-
twined in a single interactive polity.1
In 1999, just five years after the end of the reign of the apartheid
government of South Africa, the country’s constitutional court ad-

* Executive Director of The Sentencing Project; Author of Race to Incarcerate; Co-editor

of Invisible Punishment: The Collateral Consequences of Mass Imprisonment.
1. August v. Electoral Comm’n 1999 (3) SA 1 (CC) at 23 para. 17 (S. Afr.) (Albie Sachs,
J.) (striking down an administrative ban on prisoner voting).

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dressed one of the most profound issues facing the new democracy.
The case involved a challenge to the denial of voting rights for citizens
incarcerated in South African prisons and raised the fundamental is-
sue of the meaning of democracy, one that was particularly poignant
in a society in which such questions had been restricted from public
debate. In his written decision for the Constitutional Court of South
Africa, Justice Albie Sachs declared, “Rights may not be limited with-
out justification and legislation dealing with the franchise must be
interpreted in favour of enfranchisement rather than disenfranchise-
ment.”2
Few nations in recent years have considered issues of democracy
with as much care as South Africa, so the public policy debates in that
nation should be instructive to all. Yet in the United States, many
would view the issue of voting rights for prisoners as an alien concept.
Despite widespread reform campaigns on the issue of felony disen-
franchisement in recent years, public and policymaker discussion on
this topic has generally focused on the restoration of voting rights only
after completing a felony sentence or in some instances for offenders
currently on probation or parole supervision. Yet, as is true for crimi-
nal justice policy broadly speaking, disenfranchisement policies in the
United States are very much out of line with world standards, and it
behooves us to take a fresh look at the rationale and impact of policies
that can only be described as aberrant by international norms.
This Essay makes the argument that felony disenfranchisement
policies are inherently undemocratic no matter how applied, including
for persons serving prison sentences. This Essay first presents an
overview of the origins and impact of modern disenfranchisement
practices. It then addresses the policy and philosophical concerns that
are relevant in the particular case of prisoners’ voting rights.

A. Overview of Felony Disenfranchisement in the United States

Felony disenfranchisement policies can be traced back to the time
of the founding of the nation, having been carried over from the Colo-
nial period. Laws restricting the voting rights of persons with felony
convictions were common practice in the new country, which in retro-
spect is hardly surprising. While the nation was founded as an experi-
ment in democracy, it was in fact a very limited experiment.
Essentially, wealthy white male property holders granted themselves

2. Id.

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the right to vote. Estimates are that this group represented only about
6% of the population at the time.3 Excluded from the ballot box were
women, African Americans, illiterates, poor people, and people with
felony convictions. Over the course of some two hundred years all of
those prohibitions save one have been eliminated, and we now look
back on them with a great deal of national embarrassment. Thus, peo-
ple with felony convictions remain the only category of citizens ex-
cluded as a group from electoral participation.
People convicted of felonies are largely excluded from the ballot
box, and their numbers have been increasing substantially in recent
decades. This is directly related to the unprecedented growth in the
criminal justice system since the early 1970s. We can see this most
dramatically among the incarcerated population, which rose from
about 330,000 people in 1972 to 2.3 million today.4 As more people
gain a felony conviction, not surprisingly the number of incarcerated
persons rises as well.
Felony disenfranchisement laws are established by the states,
each with its own determination of circumstances under which people
with felony convictions lose their right to vote. As of 2010, incarcer-
ated felons in forty-eight states (all but Maine and Vermont) and the
District of Columbia are ineligible to vote; in thirty-five of these
states, persons on probation and/or parole are also ineligible, and in
twelve states even people who have completed their felony sentence
may be ineligible to vote and are subject to lifetime disenfranchise-
ment in four of those states.5 In the four most restrictive states—
Iowa, Florida, Kentucky, and Virginia—all persons with a felony con-
viction permanently lose their voting rights, even if they never spend a
day in prison.6 The only means by which their rights can be restored is
through a pardon from the governor, a process which has generally
been little known and cumbersome, and benefits only a relative hand-
ful of disenfranchised persons.

3. See Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchise-
ment Laws in the United States, 2002 WIS. L. REV. 1045, 1129 n.334 (2002).
4. MARC MAUER, THE SENTENCING PROJECT, RACE TO INCARCERATE 17 (2010); BUREAU
OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2009–STATISTICAL TABLES 18 tbl.15
(2010) [hereinafter PRISON INMATES AT MIDYEAR 2009], available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/pim09st.pdf.
5. THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED
STATES 1 (2011) [hereinafter FELONY DISENFRANCHISEMENT LAWS], available at http://sentenc-
ingproject.org/doc/publications/fd_bs_fdlawsinusMar11.pdf.
6. Id. at 3.

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Today, an estimated 5.3 million persons are ineligible to vote as a

result of a current or previous felony conviction.7 The scale of disen-
franchisement is now so broad that it is likely to be influencing electo-
ral outcomes. To take the most extreme example, the historic 2000
Presidential election was decided by a mere 537 votes in the state of
Florida.8 At the time, Florida had one of the most restrictive disen-
franchisement laws in the country, and on the day of the election an
estimated six hundred thousand ex-felons were ineligible to vote.9 If
the state’s policy had instead provided for restoration of voting rights
after completion of a sentence, we can only surmise how many of the
six hundred thousand would have voted and whom they would have
voted for, but clearly the outcome of a significant national election
may have turned on this policy.
Racial disparities in the criminal justice system translate into dis-
parities in the disenfranchised population as well. An estimated 38%
of the total disenfranchised population is African American,10 far
greater than the black share of the national population, but in line
with the black proportion of persons under correctional supervision.
Overall, nearly two million African Americans are ineligible to vote.11
As will be seen, racial disparities in disenfranchisement in part reflect
greater involvement in criminal behavior, but also reflect biased policy
and practice decision-making.

B. The Modern-Day Movement for Disenfranchisement Reform

Since the late 1990s, a significant movement for felony disen-
franchisement reform has emerged around the country. This was
spurred in large part by two policy reports produced early in that pe-
riod. First, a 1997 report by The Sentencing Project estimated that 4.2
million Americans were not eligible to vote as a result of felony disen-
franchisement laws.12 That report received significant national atten-
tion and was followed the next year by a joint report of Human Rights
Watch and The Sentencing Project, Losing the Vote, which provided

7. JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISEMENT

AND AMERICAN DEMOCRACY 76 (2006).
8. Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of
Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777, 793 (2002).
9. Id.
10. MANZA & UGGEN, supra note 7, at 248-53.
11. Id.
12. MARC MAUER, THE SENTENCING PROJECT, INTENDED AND UNINTENDED CONSE-
QUENCES: STATE RACIAL DISPARITIES IN IMPRISONMENT 12 (1997).

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the first state-based estimates of the impact of disenfranchisement.13

That analysis provided civil rights leaders and others at a state level
with often striking data demonstrating the large-scale impact of these
policies.
Legislative reform activity since that time has been remarkable,
resulting in some cases in the elimination of entire categories of disen-
franchisement and in others in scaling back the extent of prohibitions.
Overall, twenty-three states have enacted such reforms, while only a
small handful have adopted more regressive measures.14 Among the
reforms have been the extension of voting rights to ex-felons in Iowa,
Maryland, and New Mexico; the expansion of voting rights to persons
on probation in Connecticut and probation and parole in Rhode Is-
land; the elimination of post-sentence waiting periods in Nevada and
Texas; and the streamlining of the rights restoration process in Ala-
bama, Florida, Tennessee, and Virginia.15 A 2010 analysis by The Sen-
tencing Project estimated that more than eight hundred thousand
persons had gained the right to vote as a result of the enacted
reforms.16
Much of the concern regarding felony disenfranchisement poli-
cies has focused on the extreme racial effects of the policies. Many of
the states with the most restrictive policies, those that impose bans on
ex-felons as well as current felons, have been Southern states and
often ones with documented histories of using disenfranchisement
laws as a means of reducing black voter turnout. In the post-Recon-
struction period, for example, states such as Alabama and South Car-
olina tailored their disenfranchisement policies with the specific intent
of excluding the newly-eligible black male voters. They did so by im-
posing disenfranchisement for crimes believed to be committed by
blacks, but not so for crimes perceived to be engaged in by whites.
This set up the bizarre situation whereby a man convicted of beating

13. JAMIE FELLNER & MARC MAUER, HUMAN RIGHTS WATCH & THE SENTENCING PRO-
JECT, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED
STATES 8-10 (1998), available at http://www.sentencingproject.org/doc/File/FVR/fd_
losingthevote.pdf.
14. NICOLE D. PORTER, THE SENTENCING PROJECT, STATE FELONY DISENFRANCHISEMENT
REFORMS, 1997-2010, at 1 (2010), available at http://www.sentencingproject.org/doc/publications/
publications/vr_ExpandingtheVoteFinalAddendum.pdf.
15. Id. at 2.
16. Id.

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his wife would lose the right to vote, but not one convicted of killing
his wife.17 Such was the racial logic of the time.
Not surprisingly, the bulk of the reforms to disenfranchisement
law have taken place in states with the most restrictive policies, partic-
ularly those that bar persons from voting even after they have com-
pleted their felony sentence. Public opinion research has
demonstrated strong support for restoration of rights to those who
have “paid their debt to society.”18 There have also been persuasive
arguments that engagement in the electoral process will facilitate suc-
cessful reentry into the community from prison.
While the success of the reform movement in a relatively short
period of time has been impressive, it nonetheless either directly or
indirectly refrains from advocacy for a group of citizens that repre-
sents nearly a third of the disenfranchised population, the more than
1.6 million Americans incarcerated in the nation’s state and federal
prisons. In the following section, I will address and challenge the
commonly expressed rationale for denying the right to vote to this
group of people. In doing so, I hope to help stimulate new thinking
about whether these policies serve any legitimate function in our
democracy.

C. Challenging Prisoner Disenfranchisement: The Philosophical

Debate
The disenfranchisement of prisoners generally is premised on as-
sumptions about people in prison that portray them as qualitatively
distinct from citizens in the outside world. From this perspective flows
a view that disenfranchisement is a reasonable penalty to be imposed
upon this class of people. A closer look at these perspectives reveals
flawed logic and troubling conclusions.

1. Is Prison “Different?”
Given the momentum for reform and the changing political envi-
ronment on felony disenfranchisement, we should explore why this
movement has not generally evolved to advocating for voting rights
for persons in prison. Political considerations play into this, of course,
but perhaps the more fundamental problem is the prevailing senti-

17. Marc Mauer, Mass Imprisonment and the Disappearing Voter, in INVISIBLE PUNISH-
MENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 52 (Marc Mauer & Meda
Chesney-Lind eds., 2002).
18. Uggen & Manza, Democratic Contradiction?, supra note 8, at 794.

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ment that somehow “prison is different,” and therefore, people in

prison deserve to lose the right to vote. In this framing, prisoners are
distinct from offenders who are not in prison, and further, disen-
franchisement is seen as a reasonable aspect of the punishment that
has been imposed on them. But does this rationale hold up to
scrutiny?
In a broad sense, it seems clear that the imagery commonly
ascribed to prisoners cannot help but stigmatize this group of people
and lend a certain air of mystery to them. As many have noted, the
walls of the prison are erected not only to keep prisoners locked in,
but also to keep the outside world locked out. Few journalists venture
into this massively funded public operation, and legislators largely
take a “hands off” approach unless there is an eruption of violence.
As a result, the image of the prisoner is one that is communicated
largely through mass media marketing and Hollywood stories. Hanni-
bal Lecter may be at the extreme edge of this portrayal, but cable TV
series such as Oz and other depictions similarly communicate a pic-
ture of angry men (and sometimes women) capable of sudden and
seemingly irrational acts of violence.
So we begin with a public mindset regarding prisoners that is
largely based on overwrought stereotypes and therefore unlikely to be
inclined to be supportive of anything perceived as “prisoners’ rights.”
But in addition to this framing of the issue, there is also the problem-
atic nature of how prison sentences are viewed as qualitatively distinct
from other sanctions, a view that does not hold up to serious scrutiny.
While it is true that the vast majority of persons convicted of serious
violent crimes are sentenced to prison, in many cases of felony
sentencings it is a close call between receiving a prison sentence or
being placed on probation with conditions of supervision. Data from
the Bureau of Justice Statistics, for example, demonstrate that of de-
fendants convicted of a felony in the nation’s seventy-five largest
counties in 2006 (most recent data), about a third each were sentenced
to prison (35%), jail (36%), or probation or other non-incarcerative
sanctions (30%).19 The differences in sentencing may reflect a variety
of factors, including the relative severity of the crime, prior criminal
history, availability of sentencing alternatives, and the sentencing
judge; but many cases are essentially on the margins and could receive

19. THOMAS H. COHEN & TRACEY KYCKELHAHN, BUREAU OF JUSTICE STATISTICS, FEL-
ONY DEFENDANTS IN LARGE URBAN COUNTIES, 2006, at 12 tbl.12 (2010), available at http://
bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.

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either a prison term or a supervised sentence in the community.

Therefore, the notion that “prison is different” does not really hold up
in a substantial number of cases. Despite this, in twenty states persons
in prison lose their right to vote while those on probation do not.

2. Disenfranchisement as an Aspect of Punishment

A key assumption that contributes to prisoner disenfranchise-
ment is that it is generally assumed that disenfranchisement is merely
a component of the punishment that is imposed upon conviction. But
this assumption proves faulty on two grounds. First, unlike other as-
pects of punishment, disenfranchisement is neither imposed by a
judge based on the individual characteristics of the offender and the
offense, nor is it even acknowledged in the courtroom. Rather, it is
imposed across the board depending on the type of sentence imposed
in a given state, and most of the actors in the courtroom—including
most notably, the defendant—are not even aware that this right of
citizenship is being taken away.
A broader question lies in the nature of punishment itself. While
imprisonment clearly represents a loss of liberty, we do not normally
impose restrictions on the fundamental rights of citizenship for those
who are incarcerated. If we conceive of voting as an aspect of free
speech, the anomalous policy of restricting voting rights becomes
clear. For example, someone in prison is free to subscribe to News-
week magazine, but not to a magazine that describes how to make
homemade bombs. The distinction here is between free speech and
advancing public safety. People in prison are also free to communi-
cate their thoughts to the outside world through letters, phone calls,
and other forms of communication. Indeed, as some have done, they
can submit op-ed articles to the New York Times or the Washington
Post, and have their published words reach millions of readers. In
almost all cases, such activity is far more influential than casting just
one vote among millions in an election, yet there are relatively few
restrictions placed on such communications.

3. Prisoners as “Untrustworthy”
There are those who contend that people who break the law are
by definition untrustworthy and therefore should not be in a position
to determine the laws that govern society. As commentator Roger
Clegg reasons, “[p]eople who commit serious crimes have shown that
they are not trustworthy. And, as to equity, if you’re not willing to

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follow the rules yourself, you shouldn’t be able to make the rules for
everyone else.”20
Essentially, Clegg is suggesting that we establish a character test
for voting qualification, one defined by a criminal conviction. In a
previous era, such restrictions were only mildly disguised through lit-
eracy tests and poll taxes, but this modern day version is not much
different. For a start, it suggests that “once a criminal, always a crimi-
nal” should govern access to the voting booth. It also rests on the
dubious assumption that people who have been convicted of stealing a
car, for example, cannot be trusted to participate in decision-making
about which of two candidates has a more reasonable position on the
war in Afghanistan, publicly-funded abortions, or health insurance
policy. There is certainly no research that supports such a distinction.
One might make an argument that persons convicted of electoral of-
fenses might be barred from voting out of concern for not tainting the
electoral process, but since more than 99% of persons in prison have
not been convicted of such offenses this would hardly have any signifi-
cant impact on the makeup of the electorate.21

4. Impact on Democracy
As the nation has struggled to advance the concept of democracy
over two centuries, the increasingly anomalous policy of disen-
franchisement becomes a glaring gap on the ideal of full citizen partic-
ipation, particularly as the criminal justice population has risen to
record numbers. Even as a number of states have moved to extend
voting rights to people on probation or parole, or to those who have
completed their sentences, the prison population of 1.6 million people
becomes increasingly isolated from the ballot box.
Nevertheless, many people contemplating the prospect of voting
in prison initially conjure images of “criminal voting” that imagines
“criminals” subverting the interests of law-abiding citizens. But how
likely is this in practice? On an anecdotal basis, as one who has visited
and corresponded with many prisoners over the years, it is not at all
clear that people in prison have markedly different perspectives on

20. Roger Clegg & Marc Mauer, Should Ex-Felons Be Allowed to Vote?, LEGALAFFAIRS
(Nov. 1, 2004, 9:50 AM), http://www.legalaffairs.org/webexclusive/debateclub_disenfranchise
ment1104.msp.
21. See Pam Fessler, Voter Fraud: A Tough Crime to Prove, NPR (Mar. 15, 2007), available
at http://www.npr.org/templates/story/story.php?storyId=8922947 (stating that there have only
been eighty-seven convictions for ballot fraud since 2002).

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key national concerns—economic issues, national defense, social pol-

icy—than the voting public in the free world. And on a practical ba-
sis, consider how political campaigns are waged and how issues are
presented. While public safety issues are clearly of concern to voters,
rarely are elections decided solely, or even significantly, on those poli-
cies. Candidates may portray themselves as “tough on crime,” of
course, but it is difficult to imagine a candidate running on a “pro-
criminal” platform gaining much traction in the electoral arena.
Further, to the extent that prisoners may in fact have strong views
about incarceration and public safety issues, why should those views
be denied access to the ballot box? Consider, for example, the voting
rights of another notorious group: BP oil executives. In response to
the Gulf oil spill, there have been varied calls for civil or criminal
prosecution, payment of fines and damages, and other penalties, but
no one has suggested that these executives should lose the right to
vote. So, they are free to support candidates who they believe best
represent their worldview, and if you or I disagree with them, then it is
our job to develop support for our preferred alternatives.
In the area of incarceration policy specifically, with prisons in
most states having been declared to be operating in an unconstitu-
tional manner at various times, why would we not want to have the
perspectives of the people who have experienced those conditions
most directly incorporated into the electoral discussion? As law pro-
fessor Debra Parkes argues, “[t]he reality that prisoners may have an
impact on the outcome of elections is an argument in favour of al-
lowing them to vote rather than against it.”22 Anecdotal evidence re-
garding prisoner input on the public debate suggests that
enfranchisement may in fact encourage candidates to engage prison-
ers in dialogue. In a Canadian provincial election in Quebec in 1998
with prisoners eligible to vote, Parti Québécois candidate Raôul
Duguay met with inmates at Cowansville Penitentiary, home to many
long-term inmates.23 With ninety-two prisoners having registered to
vote at the prison, Duguay considered these numbers sufficient
enough to warrant a meeting with them.24
To bring a real world perspective into this analysis, there are in
fact two states, Maine and Vermont, that have long permitted prison-

22. Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchise-
ment Laws, 13 TEMPLE POL. & CIV. RTS. L. REV. 71, 76 (2003).
23. Id. at 100-01.
24. Id. at 101.

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ers to vote.25 In addition, Utah and Massachusetts had previously per-

mitted prisoner voting, but imposed a ban following referenda in 1998
and 2000, respectively.26 There is little data by which to assess what
this practice looks like, but available evidence suggests that a modest
number of prisoners do vote, and the process is relatively low-key.
Interested prisoners are able to use an absentee ballot to vote in their
home jurisdiction and there are no indications of practical problems
arising on election days. Looking at electoral outcomes, one would be
hard pressed to argue that these states have somehow become “pro-
criminal” in their orientation as a result of this practice.

D. Disenfranchisement of Prisoners Is Counterproductive for

Democracy and Public Safety
In addition to the philosophical challenges raised by disen-
franchising people in prison, such policies exacerbate many of the
problems associated with disenfranchisement in general. In particu-
lar, they create significant limitations on full democratic participation
by citizens, run counter to efforts to promote public safety, and exac-
erbate existing inequalities in the criminal justice system. These in-
clude limitations on the electorate, enhanced racial disparity, and
exacerbating challenges for reentry.

1. Limitations on the Electorate

Over the course of more than two hundred years the United
States has become a far more inclusive society than at the time of its
founding. The right to vote has been extended to women, African
Americans, and poor people, and earlier restrictions are now almost
uniformly looked back upon with regret. Therefore, the only major
restriction on the right to vote is for persons with current or previous
felony convictions. (Other ongoing voting rights issues remain, such
as the movement to secure Congressional representation for citizens
of the District of Columbia, though these citizens do have the right to
vote for other offices.) As noted above, felony disenfranchisement
affects a growing number of people as a result of the dramatic expan-
sion of the criminal justice system in recent decades, with the disen-
franchised population in state and federal prisons now numbering 1.6
million.

25. Mauer, Mass Imprisonment and the Disappearing Voter, supra note 17, at 51.
26. FELONY DISENFRANCHISEMENT LAWS, supra note 5, at 2.

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The legal exclusion of virtually all prisoners from the electoral

arena contributes as well to the de facto disenfranchisement of most of
the seven hundred thousand persons confined in local jails. The vast
majority of this population is not legally disenfranchised since they are
generally not serving a felony sentence or residing in one of the states
that disenfranchises ex-felons. The majority (about 62%) of this pop-
ulation is awaiting trial, with the remainder generally serving a sen-
tence of less than one year for misdemeanor convictions.27 In
practice, however, few jail inmates are ever permitted to vote, prima-
rily because of bureaucratic obstacles. Since inmates by definition
cannot get to a voter registration office, and also have difficulty secur-
ing absentee ballots, the practical obstacles to their electoral participa-
tion in effect lead to widespread disenfranchisement. Notable
exceptions include jails in Washington, D.C.; Philadelphia, PA; and
Montgomery County, MD, where jail officials and voting rights groups
have joined to make registration materials and absentee ballots widely
available within the jail to interested inmates.28 If prisoners housed in
state and federal prisons were permitted to vote, then it is likely that
mechanisms to facilitate this would be in place in these institutions,
and therefore could easily be adopted at the jail level as well.

2. Enhanced Racial Disparity

While disenfranchisement policies are theoretically race-neutral
in their intent, in practice they produce a severely disproportionate
racial effect. In large part, this results from disproportionate rates of
felony arrests and convictions among African Americans and other
minority groups. But, as a host of research has documented, dispari-
ties in imprisonment by race vary significantly in the extent to which
they reflect criminal behavior. Criminologist Robert Crutchfield, for
example, concludes that:
A growing literature shows empirically that racial differences in
criminal involvement contribute substantially less to racial differ-
ence in criminal justice processing in some jurisdictions . . . . Unwar-
ranted disparities in imprisonment and in criminal justice processing
generally have been shown to correlate with social, demographic,
and economic characteristics of jurisdictions. In other words, the

27. BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR 2010–STATISTICAL TA-

BLES, at 17 tbl.13, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf.
28. See generally ACLU, VOTING WHILE INCARCERATED 12 (2005), available at http://www.
aclu.org/pdfs/votingrights/votingwhileincarc_20051123.pdf (providing examples of exceptions).

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extent to which racial differences in imprisonment can be accounted

for by higher African American involvement in imprisonable of-
fenses . . . is dependent on the social and economic climate of states
and of particular localities.29
Nowhere is this more significant than in the area of drug law en-
forcement, the largest source of growth in incarceration since the
1980s. Looking at state and federal prisons, there has been an 1100%
increase in the number of imprisoned drug offenders since 1980,30 far
greater than the overall inmate population increase of about 350%.31
And this increase has particular resonance for disparity issues, with
two-thirds of imprisoned drug offenders being African American or
Hispanic. Much of this effect reflects disparate law enforcement prac-
tices regarding drug offenses, with African Americans being arrested
for both drug possession and sale offenses at considerably higher rates
than their proportion of drug use or sales.32 Therefore, while disen-
franchisement policies generally affect people of color disproportion-
ately, this is even more true in regard to disenfranchisement of
incarcerated people since the racial/ethnic disparities in prison are the
most extreme within the criminal justice system.
The racial effects of disenfranchisement extend well beyond the
individual who is currently disenfranchised, though. While not all
members of a given racial or ethnic group vote as a uniform bloc,
there are nonetheless strong patterns of party affiliation or issue iden-
tification in such communities. Therefore, to the extent that felony
disenfranchisement reduces the scale of the black electorate in partic-
ular, it also reduces the political impact of the larger black community,
including those who have never been convicted of a felony them-
selves. Further, it is possible that large-scale disenfranchisement may
reduce overall voter participation among eligible voters in some com-
munities. Since voting is in large part a communal activity—we fre-
quently discuss upcoming elections with family members and friends,
or drive to the voting polls together—then any diminution of this ac-
tivity may have a spillover effect. A study examining this issue found

29. Robert D. Crutchfield, Warranted Disparity? Questioning the Justification of Racial Dis-
parity in Criminal Justice Processing, 36 COLUM. HUM. RTS. L. REV. 15, 22-23 (2004).
30. See MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, A 25-YEAR QUAG-
MIRE: THE WAR ON DRUGS AND ITS IMPACT ON AMERICAN SOCIETY 2 (2007), available at http://
www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf.
31. BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE U.S. 1992, at 5
(1995); PRISON INMATES AT MIDYEAR 2009–STATISTICAL TABLES, supra note 4, at 18 tbl.15.
32. MICHAEL TONRY, PUNISHING RACE: A CONTINUING AMERICAN DILEMMA 55 (2011).

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that states with more punitive disenfranchisement policies do in fact

have lower electoral participation even among legally eligible voters.33

3. Exacerbating Challenges for Reentry

The widespread engagement with reentry policy and planning
over the past decade has marked a renewed interest in producing ef-
fective outcomes for people transitioning from prison back into the
community. While successful reentry is largely conditioned upon ac-
cess to employment, housing, and other services, a key ingredient lies
in developing positive connections to institutions in the community.
By encouraging ex-offenders to become engaged in pro-social activi-
ties it is expected that they will then come to value the rewards of
these connections more so than by engaging in anti-social behavior.
In this regard, participation in the electoral process is clearly a strong
means of connecting with the larger community and affirming one’s
commitment to that larger community. By so doing, it appears that
there are positive public safety benefits for the community as well.
An assessment of this issue by Christopher Uggen and Jeff Manza
finds that among people with prior felony convictions, there are “con-
sistent differences between voters and non-voters in rates of subse-
quent arrest, incarceration, and self-reported criminal behavior,”34
and that “[v]oting appears to be part of a package of pro-social behav-
ior that is linked to desistance from crime.”35
But the reentry rationale is equally true in regard to voting in
prison. As corrections officials around the country now recognize, re-
entry planning needs to begin not on the day of release to the commu-
nity, but ideally on the day of admission to prison. Therefore, we can
imagine the potential energizing effect of hundreds of thousands of
people in prison casting their (often first-time) votes for President and
other offices. Given the extreme isolation of prisons from outside so-
ciety, what better way of bridging that gap than participating in one of
the few areas of public life that bring all Americans together?
Disenfranchisement can also be viewed as one element of the
growing scope of the collateral consequences of a criminal conviction

33. See Aman McLeod, Ismail K. White & Amelia R. Gavin, The Locked Ballot Box: The
Impact of State Criminal Disenfranchisement Laws on African American Voting Behavior and
Implications for Reform, 11 VA. J. SOC. POL’Y & L. 66, 81 (2003).
34. Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence
from a Community Sample, 36 COLUM. HUM. RTS. L. REV. 193, 213 (2004).
35. Id. at 214.

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that make it increasingly difficult for persons coming out of prison to

rejoin the community in a productive manner. In addition to the loss
of voting rights, various state and federal policies now impose restric-
tions on access to welfare and food stamp benefits, residence in public
housing, financial aid for higher education, and access to employment.
The collective impact of such policies, along with the longstanding
stigma attached to a person with a prison record, creates a set of hur-
dles to successful reentry that are truly daunting.

E. International Perspective

As is true with criminal justice policies broadly speaking, so is it

also the case that felony disenfranchisement policy in the United
States is far more extreme than in other nations. The United States
leads the world in its use of imprisonment, is one of the only industri-
alized nations to still employ the death penalty, is virtually unique in
sentencing juveniles to life without parole, and also maintains restric-
tions on voting rights greater than in any other democratic nation.36
The extreme nature of U.S. disenfranchisement policies can be
seen in the fact that to the extent there is debate about this issue else-
where, the only significant distinction is whether any restrictions at all
should be placed on people with felony convictions and if so, only to
prohibit those persons in prison from voting. So, it is virtually un-
heard of in the rest of the Western world for an offender on probation
or parole to lose the right to vote and certainly not for someone who
has completed serving a sentence. The only exceptions to this are rel-
atively trivial ones, such as the German provision of permitting a max-
imum five-year post-sentence loss of voting rights for offenses
connected to voting fraud or misuse of the ballot box.37 In 2003, only
two persons in Germany were disenfranchised under these
provisions.38

36. Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, N.Y. TIMES, Apr.
23, 2008, at A1, available at http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.
12253738.html; Press Release, Child Rights Info. Network, Supreme Court Limits Use of Life
Without Parole Sentences for Children in Conflict with the Law (May 19, 2010) (on file with
author), available at http://www.crin.org/resources/infodetail.asp?id=22609; Abolitionist and
Retentionist Countires, DEATH PENALTY INFO. CENTER, http://www.deathpenaltyinfo.org/
abolitionist-and-retentionist-countries (last visited Mar. 21, 2011).
37. Nora V. Demleitner, U.S. Felon Disenfranchisement: Parting Ways with Western Eu-
rope, in CRIMINAL DISENFRANCHISEMENT IN AN INTERNATIONAL PERSPECTIVE 79, 86 (Alec C.
Ewald & Brandon Rottinghaus eds., 2009).
38. Id.

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A survey published by Laleh Ispahani in 2009 examined the dis-

enfranchisement practices of European nations.39 She found that sev-
enteen nations imposed no ban on prisoner voting, twelve (mostly
former Eastern bloc nations) barred prisoner voting, and eleven em-
ployed a limited ban, generally applying to those convicted of serious
crimes or serving long sentences.40
Further, in those nations where data were available, prisoners
generally displayed an active interest in electoral participation. For
example, in Belgium, Lithuania, and Romania, more than 60% of in-
mates vote, while in Italy and the Netherlands between 20-60% do so.
Recently, the right of prisoners to vote has been strongly affirmed
by constitutional court decisions in a number of nations. In two rul-
ings in 1993 and 2002, the Supreme Court of Canada upheld the im-
portance of prisoner voting rights, arguing that “[d]enial of the right
to vote on the basis of attributed moral unworthiness is inconsistent
with the respect for the dignity of every person that lies at the heart of
Canadian democracy and the Charter.”41 In South Africa, shortly af-
ter the dismantling of the apartheid government, the Constitutional
Court also upheld the right of prisoners to vote in two separate
cases.42 And in Israel, the issue of prisoner voting rights arose in the
case of Yigal Amir,43 the assassin of Prime Minister Yitzak Rabin, and
clearly one of the most despised citizens in the country. Yet the court
upheld his right to vote as well, along with other incarcerated persons,
in the case of Alrai v. Minister of the Interior,44 declaring that we must
separate “contempt for this act” from “respect for his right.”45
A case brought before the European Court of Human Rights
(“ECHR”) challenged the blanket denial of voting rights to all sen-
tenced prisoners in the United Kingdom. The case was brought by
John Hirst, who was serving a life sentence and had been barred from
voting in any parliamentary or local elections.46 While the court did
not unambiguously uphold the right of all prisoners to vote, it de-

39. Laleh Ispahani, Voting Rights and Human Rights: A Comparative Analysis of Criminal
Disenfranchisement Laws, in CRIMINAL DISENFRANCHISEMENT IN AN INTERNATIONAL PERSPEC-
TIVE, supra note 37, at 25.
40. Id. at 25, 27.
41. Sauvé v. Canada, [2002] 3 S.C.R. 519 at para. 44 (Can.); Sauvé v. Canada, [1993] 2
S.C.R. 438 (Can.).
42. Ispahani, supra note 39, at 48.
43. Id. at 49.
44. HCJ 2757/06 Alrai v. Minister of the Interior 50(2) PD 18 [1996] (Isr.).
45. Ispahani, supra note 39, at 45.
46. Id. at 41-45.

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clared in 2005 that a blanket denial such as that practiced in the UK

was in violation of protocols of the ECHR.47 The court left open the
possibility that a member state could prohibit certain categories of
prisoners from voting, such as those whose crimes involve abuse of a
public position, but only after deliberation by a legislative body to de-
velop a rationale for a compelling public interest in doing so.48
Finally, courts in Australia and Kenya have also affirmed the
right of some or all prisoners to participate in the electoral process. A
2007 ruling by the Australian High Court rejected a blanket ban on
voting by prisoners and reinstated the previous policy of permitting
voting by anyone serving a prison term of less than three years.49 And
in 2010, a Kenyan court affirmed the right of fifty thousand prisoners
to vote in an upcoming national referendum.50 While the ruling only
applied to the initial vote, it was expected that its impact might extend
to future elections as well.51 Thus, in all these cases, and even in re-
gard to petitioners hardly viewed as sympathetic in the public eye,
constitutional courts have strongly affirmed the rights of citizenship,
even for those behind bars.

F. Moving Toward Prisoner Enfranchisement

To make the argument that prisoners should be able to vote does
not necessarily suggest that such an outcome is on the near horizon in
the United States. Most states have banned this practice for many
years and in fact go well beyond it by barring people on probation,
parole, and ex-felons in many states. Currently, only thirteen states
limit their disenfranchisement policy to those who are incarcerated,
with two others not imposing any limits on voting.52
Nonetheless, if we are to attempt to move toward universal en-
franchisement we would do well to consider the strategies and
messages that can help to create the support for such a movement.
Among other considerations is the need to consider whether language
or arguments that may be perceived as strategic in the short run can
be counterproductive later. A prime example in regard to advocacy of

47. Id.
48. Id.
49. VICTORIAN ELECTION COMM’N, PRISONERS AND VOTING 3 (2010), available at http://
www.vec.vic.gov.au/files/RP-PrisonersVoting.pdf.
50. Kenya Prisoners Win Right to Vote in Landmark Ruling, BBC NEWS (June 23, 2010),
http://www.bbc.co.uk/news/10395633.
51. Id.
52. FELONY DISENFRANCHISEMENT LAWS, supra note 5, at 3.

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voting rights for ex-felons is the concept that voting rights should be
restored “once you have paid your debt to society.” But while such an
argument may be effective in gaining public support for reform, it also
reinforces the notion that losing the right to vote is a part of that
“debt” to society, and therefore, a legitimate aspect of the punishment
that is imposed. If this is the case, then not only have people in prison
not finished paying their debt, but neither have people on probation
or parole, since they are still under supervision and could be returned
to prison for violations. Thus, advocates for reform should carefully
consider how to achieve short-term change while also laying the
groundwork for a philosophical shift in our thinking about punish-
ment that can produce fundamental long-term change.
While it is unlikely that many states would consider extending
voting rights to people in prison in the short run, one can be cau-
tiously optimistic about the prospects for doing so in the not too dis-
tant future. As noted, twenty-three states have enacted some type of
reform to their felony disenfranchisement practices since 1997—a re-
markable pace of activity in a relatively short time frame.53 In addi-
tion, in an increasingly interdependent global world, public policy
discussions within the United States are moving at least modestly to
take into account practices in other nations for the insight they may
lend to our national perspective. In recent years, United States Su-
preme Court decisions involving the death penalty and life without
parole for juveniles, for example, have made note of the practice of
other nations as a point of reference for consideration.
Finally, just as advocates in all social movements maintain a vi-
sion for long-term change while striving for short-term victories, so
too should the movement for disenfranchisement reform engage the
public in thinking about the full meaning of democratic participation
in regard to felony disenfranchisement. Such discussions need to be
strategic in relation to time and place, and if consciously incorporated
into a reform strategy, we may yet see progress toward this goal
before long.

53. See supra note 14 and accompanying text.

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