Did States Restrict the Voting Rights of Felons on Account of Racism?
Published on 10-3-04
Alexander Keyssar teaches at Harvard and is the author of "The Right to Vote," which is regarded as a classic.
On September 17, Brent Staples published an editorial in the New York Times sharply criticizing the felon disfranchisement laws that will keep as many as five million persons from voting in this year’s election. Pointing to the fact that many other nations permit ex-felons (or even those in prison) to vote, he understandably asked why America treats “ex-felons so much worse than other democracies.” The answer he offers, attributed to “legal scholars,” is “the racist backlash in the South during Reconstruction.”
Staples is not the only person to put forward the view that the felon disfranchisement laws originated in efforts to deprive newly enfranchised freedmen of the vote after the passage of the Fifteenth Amendment. I too have heard this claim stated by legal scholars and by voting rights activists, on many occasions. I’m also in complete agreement with Staples’s political perspective: I do not think that any ex-felons (or even those serving prison terms) should be disfranchised, and I think that these laws have often been used with racist, as well as partisan, intent.
But the history of felon disfranchisement laws is, in fact, far more complex. Many states, north and south, passed such laws (or constitutional provisions authorizing such laws) long before the Civil War and for reasons that had little or nothing to do with race. Connecticut did so in 1818, for example, as did New Jersey and Wisconsin in the 1840s. In some southern states, moreover, felon disfranchisement provisions were first enacted not by the racist redeemer governments that came to power in the 1870s, but by their predecessors: the Republican governments that supported black voting rights. By 1900, felon disfranchisement laws were in place in a majority of states, with widely varying ethnic and racial compositions (including even Vermont!). (The data for all these assertions can be found in the appendices to my book, The Right to Vote.)
To be sure, it is true that felon disfranchisement laws were utilized in the South in the late nineteenth and twentieth centuries as a means of disfranchising African Americans. And some states, such as Alabama and Georgia, altered their laws over time in order to target African Americans and reduce their voting strength. Felon disfranchisement laws, especially in the South, did become part of the fabric of racial discrimination and exclusion.
But the idea of disfranchising felons and ex-felons did not originate in the post-Civil South, and most laws that disfranchised felons had complex and murky origins that still await thorough historical investigation.
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Oscar Chamberlain - 10/7/2004
I don't remember the source, but I seem to recall from graduate school days that in some Reconstruction (c. 1867-1870) constitutions, the list of crimes that diqualified people was purged of items like petty theft to help blacks (many of whom had been convicted unfairly under the Black Codes) but left in provisions on dueling, that would have impacted upper-class (at least before the war) whites.
Again, from same vague source, whites reversed that sort of logic when writing the redemption/disenfrnachisement constitutions of the period from the 1880s into the early 1900s.
Andrew D. Todd - 10/5/2004
By the eighteenth century, the per capita rate of capital punishment in England was perhaps a tenth of what it had been in the sixteenth century (say a thousand per year in a population of eight million versus two thousand per year in a population of two millions). By the early nineteenth century, the rate fell another tenfold (a hundred a year for twenty millions). The main reason was probably the growth of "transportation," that is, compulsory emigration to the colonies. What it came down to was that the colonials were willing to buy convicts as indentured servants, whereas the authorities would have had to pay to have them executed. Then as now, executions were very expensive because most people have no desire to be hangmen. This meant that while the full force of the law was theoretically operative, and might descend with its full force on some unfortunate who happened to be in the wrong place at the wrong time, the average was considerably milder. For example, one of the convicts cited by Manning Clark, in his _Short History of Australia_ (1963,..., 1987) had stolen four pounds sterling worth of cloth, probably ten times the theoretical minimum for the death penalty, depending on whether he had shoplifted it or not. Another was a receiver of stolen goods. (p. 33, pbk ed). The radical scaling back of execution in England happened at least fifty years to a century before the American Felon Disenfranchisement laws.
The peak population of felons in America was probably just about at the time of the Revolution, because with American independence, England was obliged to start sending its felons elsewhere, specifically to Australia. If the American Felon Disenfranchisement laws were motivated by concern for the numbers of felons per se, why wait until all the English imports had died off?
Women were of course scarce in the colonies, and a man who wanted a wife commonly had to buy one out of bondage. Ann Jones, in her _Women Who Kill_ (1980, p. 25-26) cites the case of one woman who arrived in Maryland as an indentured servant, a la Moll Flanders, and got married. Some years later, she successfully sued her former master for calling her a whore. The court satisfied itself of her good conduct since arriving in Maryland, and refused to take cognizance of whatever she might have been or done previously. This does not bear directly on voting, of course, but it is indicative of a society which was decidedly eager to seal a previous offender's records at the least pretext.
In the late nineteenth century, English transportation moved down to the juvenile court level, as organizations such as the Barnardo Homes began systematically rounding up street urchins before they had a chance to acquire police records, and shipping them off to the Dominions for adoption.
One curious thing about Cesare Beccaria was that he was an Italian, or more precisely, a Milanese, a Lombard, which in the late eighteenth century would have made him an Austrian national. That is, he was in one of the countries which did not have its own colonial system. He didn't have the direct access to the colonial system that the English, French, and Spanish did, and that is probably why he got to the point of working out a formal penal reform system.
Now, as applied to the United States, there are two points that one might mention.The first would be the extent to which the frontier became a refuge for all manner of fugitives, and the comparative ease of escaping one's past. The other is the absence of a forced program of colonization. Returning again to Oscar Handlin, Handlin made the point that the Irish immigrants were the first group of immigrants to clump around the port of arrival and become an urban underclass. In 1850, they were overwhelmingly concentrated in three occupations: laborer, domestic servant, and tailor (this being before widespread use of the sewing machine). (see table 13, Boston's Uprooted) The Irish were neither off in a community of their own, somewhere deep in the wilderness, nor were they dispersed in small numbers. They were concentrated in such a way as to yield maximum political power. When you combine that with a huge conviction rate, and the abolition of property qualifications for voting, that would suggest that the practical result of Felon Disqualification would have been to diminish the Irish vote substantially, whether by intent or by coincidence.
Here is a source I ran across, by serendipity while looking for material about dueling. It captures something of the ambiguity of crime and punishment in the late eighteenth century:
What follows is an account of a trial at the Old Bailey, London's criminal court, on Thursday, January 13, 1785:
"Jane Thacker was the next prisoner brought to the bar; she was quite a child, being no more than nine years old. The crime with which she stood charged was the stealing of fourteen yards of black lace. It appeared in evidence that the child, in company with her mother, had gone into a public house near Clerkenwell; that the publican seeing a vinegar cruet and stand with the mother, suspected it to have been stolen, and said he would have her carried before a magistrate, and at the same time began to search her and the child; in the pocket of the latter he found the lace, which was the subject of the indictment. The menace thrown out by the publican about taking her to a magistrate had such an effect upon the mother, that she confessed she had stolen the cruet, lace, &c. Here the Recorder [a part-time judge], with an honest indignation, stopt [sic] the trial, and asked by whose advice a child had been indicted for a crime, which had confessedly been committed by another. The answer given by the publican was, that the lady to whom the lace belonged had offered to drop the prosecution, if her lace was restored to her, because she did not wish to prosecute a child against whom she had nothing to allege; but that as the property could not be restored without a prosecution, the lady had been under the necessity of proceeding against the prisoner. The Recorder replied, that the conduct of the lady was extremely proper; but that the conduct of those who had advised the preferring of an indictment against an innocent child, while they had in their possession the real criminal, was "shameful and abominable." It was difficult to say which expressed the greater indignation on this occasion, the Court or the Jury. An acquittal followed of course. The recorder directed Mr. Akerman to keep the child in custody, til something should be done for her. Her mother is in Newgate, waiting to be tried for stealing the cruet; upon learning this circumstance, the Recorder desired the child might wait in the prison the event of her infamous mother's trial; at the same time wishing that Mr. Akerman would contrive to keep her as much as possible from the company of the most abandoned prisoners."
London Times, January 14, 1785, p.3, col. 3-4
More fundamentally Felon Disenfranchisement raises the issue of the political legitimacy of the government. The United States is of course founded on the principle of "no taxation without representation." Madame de Stael soon extended the principle to "no punishment without representation," specifically referring to the legal position of women (see Jones, above, p. 186-92, for a discussion of this, with reference to the case of Mary Hartung). However, this reasoning also applies to young people. Practically speaking, if someone does not have a criminal record by the age of twenty-four or so, he is unlikely to ever have one. The way the American system of government is set up, it takes several years of legal adulthood to have an opportunity to vote for the various offices. When there are whole social strata who are normally convicted of a felony before having had a reasonable opportunity to vote (the extreme case being juveniles tried as adults), Felon Disenfranchisement amounts practically to punishment without representation. That is, the offenders have not been allowed their chance to vote for the laws to be modified in ways which would defelonize their actions, or otherwise ameliorate their condition. A textbook case would be the drug laws. The number of people in prison is already larger than the margin of victory in close presidential elections, and shows every sign of growing to still greater numbers.
There are some comic pictures dating from the French Revolution, with captions like: "The executioner, having guillotined the whole of France, has nothing left to do but to guillotine himself." or "Robespierre guillotines the executioner, who has guillotined everyone else." One could imagine updated versions...
Parenthetically, when the government gives itself or the public the benefit of the doubt in setting an age of adulthood, it commonly sets the age somewhat higher than eighteen. The drinking age is twenty-one, imposed on the states by federal funding mandates. Similar requirements operate for various kinds of licenses, military commissions, etc. So the government is in a contradictory position of arguing that an individual is too young to be given responsibility, yet old enough to be held responsible on a long-term basis.
Clayton Earl Cramer - 10/4/2004
Would it not be a simpler explanation (in the absence of evidence of such intent) to suspect that felons were disfranchised because felonies were very, very serious crimes? Once upon a time, many felonies carried the death sentence. There was a general movement away from capital punishment in the early Republic, under the influence of reformers like Cesare Beccaria. Obviously, executed felons seldom vote, and it is at least plausible that disfranchisement of felons was part of this general movement away from the more severe punishments of the colonial period.
Alabama's 1901 Constitution provided for disfranchisement of both convicted felons and those convicted of misdemeanors of moral turpitude. In Hunter v. Underwood (1985), the Supreme Court concluded that while there was no specific statement of intent for this clause, this was one of the stated goals of the Constitutional Convention that drafted the 1901 Constitution. Consequently, the Supreme Court struck down the moral turpitude provision.
I can understand why Democrats have an interest in seeing felon disfranchisement statutes and constitutional provisions struck down. It should require a bit more than disproportionate racial impact to do so. It should take evidence that this was the intent behind all felon disfranchisement provisions, or at least behind particular provisions in particular states.
Andrew D. Todd - 10/4/2004
It is a cardinal mistake to apply conventional notions of racism to a region which has (or had) practically no Blacks. One of the things we are apt to lose sight of is the sheer whiteness of the Antebellum North.
Following Ira Berlin's tables in _Slave Without Masters_ (1974):
Population of the North:
date ______1790 ____1810 ________1860
white ______1900K __3653K ______18,860K
free black _____27K ____78K ________226K
slave _________40K ____27K __________nil
total black ____ 67K ___106K ________226K
percentage ____3.4% ___2.8% ________1.2%
(p. 46, 135, 396-99)
The total number of Blacks in the north was small and not keeping up with the White population. The great "racial" issue would have in all probability have been Hibernian, not African. If one consults the statistical tables in Oscar Handlin's _Boston's Immigrants_ (1979 ed., orig. pub. 1941, tables 4, 8, 21-24) one finds that something between half and three-quarters of prisoners in the 1850's were Irish, and felon disenfranchisement must necessarily have had a primarily anti-Irish effect. Extrapolating from Handlin's figures, the jail population might have worked out to about two percent of the Irish population of Boston. If I read this correctly, it would suggest that about one Irishman in two had been "inside" at one time or another, though not necessarily on a felony conviction.
One could make a case that the North was the first to confront the issue of a free underclass. Felon disenfranchisement might be viewed as part of a selective retreat from the larger principle of property qualification, ie. making a distinction between respectable non-freeholders ("working poor" in today's political lexicon) and the true underclass; and democratizing the franchise to include the former but not the latter. In the case of the South, Reconstruction would be the precise time when one would expect felon disenfranchisement to emerge, along with such issues as the legal notion of vagrancy, because a more extensive system of control and restriction-- slavery-- had been removed.
See my "What Is a "White Nigger" Anyway?"