[Class Title]
Introduction
Established by the Greek statesman, Solon, sometime in the 600 B.C., voting has always been a key feature of democracy. The international community regards it as the most basic human right, which should be protected and guaranteed to all citizens of a country as stipulated by internal human rights laws. A government by the people must have the participation of the people, which is realized through suffrage. Today, voting rights are already universally practiced, yet there are certain circumstances wherein such right is taken away by the state. In the United States, a person will lose most of his rights, including his right to suffrage, once he is convicted of felony. It should be noted that the right to vote was not originally a universal practice. Although suffrage or the right to vote is considered as the founding principle and the cornerstone of a democratic society, historically, such right does not apply to every citizen of a state (Douglas 81; Cartledge). Even in the ancient Greek and Roman societies, not everyone has the right to vote as suffrage is only limited to certain individuals. The Greek democratic experiment, for instance, only allows male adult citizens to vote. In fact, even in the United States, which is considered as the bulwark of modern democracy, voting did not apply to every adult citizen until the late 19th century, when voting rights were extended to include women (Lott & Kenny, 1166). Some states even deferred extending the rights of suffrage to women until the 1920s (Lott & Kenny, 1167). Disenfranchisement is, apparently, not a new scenario in the United States. The disenfranchisement of felons, in particular, has raised controversies, especially in the United States wherein a significant number of convicted felons have already reintegrated into society. In a broader spectrum, this paper would like to explore the practice of felony disenfranchisement in America. This paper also examines the theoretical and legal basis of felony disenfranchisement in the light of contemporary political and legal philosophies and the United States’ constitution.
Historical Development of Felony Disenfranchisement
Felony disenfranchisement refers to the practice under the law wherein convicted criminals are excluded from voting (Uggen, Behrens, & Manza, 307). Such practice is not only unique to the United States, but is also observed in most countries with varying severity. Taking away a person’s right, particularly his voting right in the event of a criminal offense is not a new practice. In fact, disenfranchisement was practiced by the early Greek and Roman societies. According to scholars, the government of ancient Greece imposes the status of ‘atimia,’ wherein offenders of certain crimes lose their voting rights as well as many other citizenship rights, temporarily or permanently (Manza & Uggen, 492). In ancient Rome, there is a certain punitive policy known as ‘infamia’ wherein the convicted person is condemned to partial or complete loss of citizenship rights, particularly the right to vote (Manza & Uggen, 492). Europeans, during the middle ages, also practiced disenfranchisement in a more intense way wherein convicted criminals do not only lose their rights, but are also at risk of being injured or killed since they can be killed by anyone with impunity (Manza & Uggen, 492). The English common law also adopted the practice of disenfranchisement. Refered to as the ‘civil death,’ the English disenfranchisement may render a complete loss of citizenship rights to the individual. Such legal practices were brought by English settlers to the New World, which eventually became a legal tradition in the United States. Early colonists continued the practice of felony disenfranchisement for fear that corruption may creep in in their societies (Schall 55). Disenfranchisement was observed in the English colonies of Virginia, Maryland, Plymouth, Connecticut, Rhode Island, and Massachusets (Schall 55). Prior to the American Revolution, disenfranchisement in America extends to slaves, non-whites and to all women regardless of color. After the American revolution, the emancipation and the civil rights movement expanded further the voting franchise to women and men of color in the United States. Disenfranchisement laws, however, were not abandoned. Major modifications to disenfranchisement were made, but the practice was retained by most states.
Felony Disenfranchisement in the United States
While the practice of disenfranchisement were being abandoned in the modern world, most states of the United States retained the legal practice. The United States’ felony disenfranchisement, however, is unique in a sense that it is applied arbitrarily and varies from state to state. Out of its 50 states, only Maine and Vermont have totally abandoned disenfranchisement laws while the rest implements disenfranchisement with varied rules and circumstantial considerations. Fourteen states, including the District of Columbia, prohibit voting to its incarcerated felons, which ends only after they were released from prison. These states include Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island and Utah. Four states, namely the states of California, Colorado, Connecticut and New York extend its felony disenfranchisement to those who are under parole. Eighteen states, such as the states of Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia and Wisconsin impose felony disenfranchisement not only to those who are serving their prison and parole terms, but also to those who are under probation. Twelve states, on the other hand, have circumstantial felony disenfranchisement laws, which depends on factors such as incidence and gravity of the offense. States such as Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia and Wyoming may or may not restore voting rights to felons after completion of their sentence. In some cases, felons are required to file an individual petition before their voting rights can be restored. Still, such decision is subject to arbitration, depending on the circumstances of the crime committed. Felony disenfranchisement in the United States has come to a point wherein it could not be easily ignored. According to recent estimates, almost six million Americans are being prohibited from going to the polls because of felony disenfranchisement laws.
Theoretical Basis of Felony Disenfranchisement
Proponents of felony disenfranchisement point out to the social contract theory as the major basis of their argument supporting such rule of law (Uggen, Behrens, & Manza, 309). The social contract is a political theory, which posits that there exists a “hypothetical or actual” voluntary agreement between the government and the people it governs (Rusling 4). Major proponents of this theory, such as Rousseau, Locke and Hobbes, maintain that a social contract should be in effect in a civilized society in order to maintain order. Accordingly, people “abide by the government’s rules and regulations in the hope that others will do the same, subsequently leading to a more secure and comfortable life” (Rusling 4). The importance of the social contract theory as it applies to the legal rights of an individual could not be undermined. According to John Rawls, a modern proponent to the social contract theory, the most important natural duty from the standpoint of justice is to “support and to further just institutions”. For Rawls, it is the duty and obligation of an individual to abide by the rules of society as imposed by a legitimate government where all rights originate. Apparently, rights would not exist without a government to impose it. A right must first be recognized by the state for it to become effective. The state, in this sense, is the giver of individual rights and also its protector. For the same reason, justice can only be served by just institutions of legitimate governments. Rawls believe that when people are left on their own, some would act selfishly according to their own personal interests (Rawls 336). The state, therefore, has a hypothetical agreement with society to regulate the personal interest of its members through its institutions in order to conduct social justice (Rawls 344). Felons, on the contrary, are considered as breakers of the social contract that binds society together (Uggen, Behrens, & Manza, 309). Individuals who commit felony are believed to have breached this social contract, which, for disenfranchisement proponents, justifies the taking away of some of their citizenship rights by the state including their rights to suffrage (Uggen, Behrens, & Manza, 309). Hypothetically, by breaching a contract, felons are, considerably, social outcasts and by being an outcast, it means that they have already excluded themselves from the protection of social institutions. For some scholars, taking away a person’s right can be considered as a retribution; a punishment tied to committing felony (Uggen, Behrens, & Manza, 310).
Legal Challenges and Constitutional Conflicts
Opponents of the felony disenfranchisement practices in the United States, on the other hand, believe that such practice is unconstitutional and in direct contradiction to the provisions of the United States constitution. Felony disenfranchisement is, particularly, in direct contradiction of the provisions of the equal protection clause of the 14th amendment which states that: “No State shall make or enforce any law 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”. However, section 2 of the 14th amendment also provides a disclaimer stating that the government can abridge the right of a person when it is proven under due process that he has engaged in rebellion or ‘other crimes’ (Brooks 104). The term ‘other crimes’ in the 14th amendment provides a legal basis for felony disenfranchisement that accounts for its constitutionality. There were several instances wherein felony disenfranchisement laws were challenged. One of the landmark cases that involves felony disenfranchisement is the case of Richardson v. Ramirez (The Sentencing Project 3). In this case, three men with felony conviction challenged California’s felony disenfranchisement law; citing the equal protection clause in section 1 of the 14th amendment (The Sentencing Project 3). It should be noted that these three individuals have already completed their sentences and paroles and yet they were refused to vote in California. The Supreme Court, however, ruled that California’s felony disenfranchisement laws stands; consistent with the provisions of the 14th amendment under section 2 (The Sentencing Project 3). In several instances involving felony disenfranchisement, the Supreme Court has always ruled in favor of the state’s disenfranchisement policies, which suggests that such practice is considered as constitutional.
Conclusion
The right to vote may be considered as a universal right afforded to an individual as a privilege for his citizenship in a particular country. In the United States, this right is not absolute. While the United States constitution recognizes the right of suffrage for all its citizens beyond the legal age, it also reserves the right to take away such right from an individual when the individual commits certain crimes, particularly felony. A significant percent of the American population has been disenfranchised because of felony convictions, which has raised concerns regarding the implication of such law towards the American society. Nevertheless, the practice of felony disenfranchisement is justified by political and legal theories, particularly the theory of social contract. For proponents, the implementation of disenfranchisement among felons only serves as a retributive punishment for breaching the social contract of society by committing a felony. The constitution of the United States under section 2 of the 14th amendment also upholds that there are certain crimes wherein an individual’s right to vote can be temporarily or permanently abridged. Legal challenges brought to the courts against state imposed disenfranchisement have always been ruled in favor of the state, which strengthens the constitutionality of such practice.
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