Fearing that there could be dire implications towards the nation’s democratic ideals, many people in America have aired their criticism regarding state laws that bans felons from voting. Law professor and New York Times columnists, Janai S. Nelson, criticized the practice as ‘anti-democratic’ and discriminatory. In a New York Times article dated April 2016, Nelson stated that the running policies of felony disenfranchisement in the United States are comparable to “ the antiquated laws that excluded women, people of color and the poor from the ballot box,” which, according to Nelson, is “an anti-democratic tool with a sordid history of discrimination”. In the United States, only two states do not ban felons from voting; these are the states of Vermont and Maine. The rest of the states have felony disenfranchisement policies with varying severity. There are states that ban voting only to incarcerated individuals, such as the states of Utah, Rhode Island, Pennsylvania, Oregon, Ohio, North Dakota, New Hampshire, Montana, Michigan, Massachusetts, Maryland, Indiana, Illinois and Hawaii. Some states ban voting rights not only on incriminated individuals, but even on those are serving a parole sentence. The states of New York, Connecticut, Colorado and California have adopted such policies. The most severe of the felony disenfranchisement policies is being observed in the states of Wyoming, Virginia, Tennessee, Nevada, Nebraska, Mississippi, Kentucky, Iowa, Florida, Delaware, Arizona and Alabama. In these states, a person convicted of felony needs to make an appeal to the court first before his or her voting rights is reinstated. However, the chances of restoration of voting right are often slim. Most likely; the convicted criminal will be permanently disenfranchised for the rest of his life. Felony disenfranchisement in the United States, however, have been rarely challenged and in most cases, the law has been upheld by the Supreme Court. Using ethical theories, this paper aims to understand if the practice of felony disenfranchisement has ethical basis.
The theories of utilitarianism and deontology are two ways on how to analyze the felony disenfranchisement controversy in an ethical perspective. In a utilitarian point of view, an action or policy can be considered as ethical if it brings happiness or goodness to the majority (Eggleston, 2012, p. 452). Utilitarians are concerned more about the consequence rather than the motivation and numbers is the final test of their decision making process (Eggleston, 2012, p. 452). Deontology, on the other hand, is based on the principles of justice and duty (Hull, 1979, p.7). One of its major proponents is the German philosopher, Immanuel Kant. Kant believes that there are things that are inherently good (Hull, 1979, p.7). For Kant, in making ethical decisions, individuals are duty-bound to seek and follow what is intrinsically good (Hull, 1979, p.7). Absolutism is the extreme adherence to deontological principles. For absolutists, no matter what the consequences would be, people are still duty-bound to follow what they believe are intrinsically right (Hull, 1979, p.7). Deontologists justify their actions by their motivation or intentions. For them, the consequence of an action is irrelevant; it is only the motivation that matters. It is quite difficult, under utilitarianism, to establish whether felony disenfranchisement is ethical or not primarily because there are insufficient data regarding the negative or positive impacts of such law on society. The majority, therefore, could not decide whether it impacts their personal interest and happiness if the government does not allow some people from voting. Although felons who are not allowed to vote have been estimated at around 6 million individuals, this number only represent a small fraction of the entire voting population of the United States.
Deontological principles, however, can provide a clearer stand on the topic in the context of the law’s constitutionality. It should be noted that felony disenfranchisement is a traditional policy that has its roots from the early democratic societies. Scholars believe that felony disenfranchisement have been practiced even during the ancient democracies of Greece and Rome, wherein citizens are stripped of their rights, including their voting rights, when they violate certain crimes (Manza & Uggen, 492). Such laws have also made their way towards the post-modern English common laws. The United States’ disenfranchisement laws can be traced back to this traditional English laws that were brought to the New World by the first English colonists. According to law scholar, Jason Schall, such laws was adopted out of fear that corruption could “creep into the best and purest societies” (Schall, 2006, p.55). Whether or not the individual has an inherent right to vote is not of significant consequence. The right to vote comes with an individual’s citizenship; a form of social contract with society (Uggen, Behrens, & Manza, 309). By default, scholars believe that this social contract is breached once the individual commits a crime or a felony (Uggen, Behrens, & Manza, 309). Although the law regarding felony disenfranchisement have been rarely challenged, the Supreme Court has been quite clear on its stand regarding the constitutionality of such policies. In a landmark case of Richardson v. Ramirez, the Supreme Court upheld the decision of California’s court wherein it ruled that California’s prerogative to restore or restrict voting rights to convicted felons was constitutional. In its decision, the Supreme Court cited section 2 of the 14th Amendment, which states that the state is allowed to abridge the right to vote of an individual when he commits rebellion or ‘other crimes’ (Brooks 104).
The constitution is the main legal framework of the United States. Under deontological principles, the state has a duty to uphold the constitution no matter what the consequences are. The term ‘other crimes’ in the section 2 of the 14 Amendment are not specified, yet it is understood that the right to vote is not an absolute right under the constitution of the United States, which makes felony disenfranchisement laws constitutional. Deontology, therefore, suggests that if felony disenfranchisement is constitutional, then its implementation is ethical. In conclusion, unless the constitution is amended, under the theoretical framework of deontology, the implementation felony disenfranchisement in the United States is ethical.
References
Brooks, G. (2004). Felon Disenfranchisement: Law, History, Policy, and Politics. Retrieved June 2016, from http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2140&context=ulj
Eggleston, B. (2012). Utilitarianism. Retrieved April 2016, from http://www.benegg.net/publications/Eggleston_Utilitarianism.pdf
Hull, R. (1979). The Varieties of Ethical Theories. Retrieved March 2016, from http://www.richard-t-hull.com/: http://www.richard-t-hull.com/publications/varieties.pdf
Manza, J., & Uggen, C. (2004). Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United States. Retrieved June 2016, from http://users.soc.umn.edu/~uggen/Manza_Uggen_POP_04.pdf
Nelson, J. (2016). Felon Disenfranchisement Is Anti-Democratic. Retrieved June 2016, from http://www.nytimes.com/roomfordebate/2016/04/22/should-felons-ever-be-allowed-to-vote/felon-disenfranchisement-is-anti-democratic
Schall, J. (2006). The Consistency of Felon Disenfranchisement with Citizenship Theory. Retrieved June 2016, from http://www.law.harvard.edu/students/orgs/blj/vol22/schall.pdf
The Sentencing Project. (n.d). Felony Disenfranchisement: A Primer. Retrieved June 2016, from http://www.sentencingproject.org/wp-content/uploads/2015/08/Felony-Disenfranchisement-Primer.pdf
Uggen, C., Behrens, A., & Manza, J. (2005). Criminal Disenfranchisement. Retrieved June 2016, from http://sociology.as.nyu.edu/docs/IO/3858/Criminal_Disenfranchisement.pdf
