Qualified to Vote?
Problems with the Question of Qualification in Felony Disenfranchisement
Universal, or as it is more accurately and significantly stated, “near-universal” suffrage is generally considered one of the fundamental defining features of democracy. Despite its political meaning – both material and symbolic – the right to vote is not an express one in the United States Constitution: it is left up to the individual states to dole out the franchise to their citizens. Throughout the history of this country, this federalism problem has left legal space for the denial of this political right to certain groups and individuals. Felony conviction in particular is accepted today in almost every state in the union as a valid reason for some degree of disenfranchisement.
Though the issue of voting rights for the formerly incarcerated has received increasing attention in recent years from both legislators and the general public, this paper will focus on the loss of this right with regard to a group of people whom the majority of Americans still feel don’t “deserve” it: the incarcerated. I will examine the way a group’s perceived moral status has shaped the issue of ex-felon disenfranchisement and the “non-issue” of prisoners’ human and civil rights, and point out the problems with the idea that a person or group must be “qualified” to vote. I see this qualification question as a sort of linchpin joining classic liberal “rights talk” about a “political” right of questionable weight, with the very real and urgent issues of power, oppression and agency in what is arguably this country’s most vulnerable human population, and in our society as a whole. I feel an examination of felony disenfranchisement in terms of this qualification question would open our eyes to the way our perceptions of the issue and non-issue are systemically formed, and can be transformed.
I will begin with a brief overview of the current felony disenfranchisement situation in the United States. Because this is an issue of a democratic political right, I will then present a definition of democracy against which I will be scrutinizing the qualification question. Because this political right is being withheld from a specific class of people, I will present a brief history of the subject formation of this “criminal” class. Then I will go into the problems with the question itself, where my overall trajectory will be from the concrete to the abstract in terms of power. First, I will examine the most apparent effects of the question on democratic mechanisms. Then I will examine the question as anti-democratic in increasingly “systemic” terms, focusing on its impact on the consciousness of the general public and PFCs themselves. Last, I will return to the realm of the “concrete” to review some of the ways in which exclusion of certain groups from the franchise based on “qualification” has been used for political reasons throughout the history of the United States. Though I acknowledge the immediate political necessity of framing the issue of rights restoration in terms that can realistically win legislative change, I will finally propose an examination of our language and beliefs toward a more informed debate where no group or class of people is marginalized, injured, or forgotten.
Overview of the current situation
Any attempt at an overview of felony disenfranchisement must necessarily be limited by the variety of disenfranchisement laws in the United States. The “Guarantee Clause” of Article IV, Section 4 of the Constitution grants to the individual states the power to choose their own electorate, resulting in fifty-one unique approaches. For example, at the time of this writing two states (Maine and Vermont) allow suffrage to inmates, eight disenfranchise felons for life with various (mostly prohibitively difficult) clemency procedures, and states vary with regard to probation and parole. In addition, for clemency many have waiting periods, application procedures often involving fees, and conditions that vary by the crime involved. Virginia, for instance, has a waiting period of five years for most crimes, but seven for drug-related offenses. In all, felony disenfranchisement laws leave an estimated 5.3 million Americans unable to vote. (Manza & Uggen 2006)
In the current tough-on-crime political climate, the only restoration legislation being pursued is for the formerly incarcerated – restoration for the incarcerated is not even an issue in most Americans’ minds. In fact, while many (often extremely limited) victories have been made recently for ex-felons, prisoners themselves have been increasingly disenfranchised (49) – the latest being those of Utah in 1998 and Massachusetts in 2000. Recent public opinion polls show 80% of Americans favoring restoration of voting rights for ex-felons off parole and probation, but only 33% favoring them for the incarcerated (Hull 57). This stands in stark contrast to the rest of the world: nations as diverse as Canada, Israel, and South Africa allow prisoners to vote, and in Europe alone seventeen countries allow full suffrage, while twelve allow it to some prisoners (ACLU data presented at Arizona Rights Restoration Coalition inaugural meeting).
While voting laws and public opinion draw a line between the formerly and the currently incarcerated populations, activists and advocacy groups often do not. Ex-felon groups and advocacy organizations such as the Sentencing Project and California’s All of Us or None (the name should be telling) are active in prisoners’ rights advocacy, while mainstream organizations such as the American Civil Liberties Union and the American Friends Service Committee serve both the currently and formerly incarcerated based on broader human and civil rights considerations. This discrepancy of a legally divided, but civilly united, group is significant in many ways that will reveal themselves in my argument.
Democracy – a working definition
For a definition of democracy suiting the purposes of this paper, I am drawing on essential aspects of Robert Dahl’s “five criteria” for democracy and Clarissa Rile Hayward’s “de-facing” of power. Dahl’s five criteria are, in short, (1) effective participation, (2) voting equality at the decisive stage, (3) enlightened understanding, (4) control of the agenda, and (5) inclusiveness. (Dahl, 109-113, 119-120) Of particular importance to issues of felony enfranchisement is Dahl’s Strong Principle of Equality: “the demos should include all adults subject to the binding collective decisions of the collective” (120 [Italics original]). This subjectivity is certainly the case for PFCs; obvious issues affecting this population, such as criminal law and prison policy, are decided by the voters or by elected or appointed officials. Other issues decided by the electorate, such as economic policies, also indirectly affect these people, their families, and communities. An important aspect of Dahl’s theory of democracy that this paper does not rest on, but “keeps in mind,” is his concept of “democracy” as an ideal toward which certain actual functioning governmental systems work, and that those with this goal are more accurately technically called “polyarchies.” The effort to expand the franchise to everyone impacted by collective decisions would be in keeping with this trajectory toward democracy. As I will demonstrate, current policies of felony disenfranchisement, and their reinforcement by the concept of qualification, would put the United States low on any hypothetical “democracy scale.”
To demonstrate the particular democratic harm I see in the disenfranchisement of the incarcerated based on qualification, I draw on Clarissa Hayward’s De-Facing Power (2000). In her study of power relations in elementary schools, Hayward characterizes power as something that not only works on us, in the pervasive, Foucauldian sense, but that can be worked itself toward democratic ends. Hayward sees the democratic project as supporting power “relations that promote participants’ political freedom – that is, their capacity to act in ways that affect norms and other mechanisms defining the field of the possible” (7). This “field of the possible,” in return, is where the next “field of the possible” is defined. And so on. The democratic project as an expansive, growing process within which “boundaries to action” can themselves be acted upon (7) – completes my definition.
A brief history of “the criminal”
In Discipline and Punish, Foucault traces the origins of the contemporary Western carceral system through the shift from monarchical to liberal-constitutional government and the explosion of industrial capitalism, and reveals the modern prison as an institution for maintaining the more pervasive control necessary to the new state. To serve this new pervasiveness of discipline the juridical focus shifted from the crime to the criminal, or from individual acts of outlawry randomly punished by the sovereign to a class or type of person who must be controlled in the more systematic and consistent style of the new state. This “criminal” class stereotypically fit the lower socioeconomic class of the time (Foucault 1977).
Another effect of this new carceral system is salient for our purposes. Punishment that was formerly public spectacle where the people could, and generally did, identify with the one being punished, was hidden away behind walls. These walls drew physical and conceptual lines between the people and this new “criminal” class, physically removing perpetrators form the public eye, thus conceptually allowing the “criminal” to be othered, and eventually seen as not only “abnormal,” but on the public-sphere level “the enemy of all” (101 [emphasis added]).
Where Foucault focuses on the prison and its class of inhabitants to give us a genealogy of a more broadly defined disciplined subject, including that created by education, the military, and the factory, Marie-Christine Leps (1992) takes up the genealogy of the criminal subject him- or herself. Leps observes a conversation between popular literature, the press, and the new “science” of criminology in late nineteenth-century Europe creating this robust new subject, who is by various accounts childlike, “savage,” irrational, and prone to “moral atavism” (48-49). The analysis, portrayal, and reportage of this subject, while in many cases seemingly attempting to address the problem of “criminality,” only served to reify “the criminal” itself in the popular imagination.
The nineteenth-century portrayal of the “criminal” as a type, a member of a social class possessing actual identifying habits and physical characteristics (Leps 4), would also conveniently fit racist social and political agendas of the time. Dennis Childs, in his examination of the racist roots of practices at Angola Penitentiary in Louisiana, sees a parallel: “[The] black slave and the black inmate have been racially preappointed as uncorrectable” (195-196), “irrational” yet “tamable beings” (198), easily identified and kept “in the system.”
The first important point here is that the “criminal” came to be in the nineteenth century. Before then, it was not. Much in the same way that “race” was created to serve the early colonizing mission as an easy identification system for the colonized, and has since become a “reality,” the “criminal” is now with us, normalized, unquestioned, and serving a similar agenda. More important to our discussion (perhaps because we can’t simply wish the criminal away altogether at this point in time) is the quality of this subject. To borrow Catharine MacKinnon’s phrase, the criminal seems to be “metaphysically nearly perfect.” Or perhaps criminal justice lingo is more appropriate: it’s “airtight;” an “open and shut case.” The criminal subject is conveniently malleable both temporally and geographically to any political agenda: whether the goal is reform, “cracking-down,” rehabilitation, punishment, or the demonizing of any activity, behavior, or class of persons, the “criminal” has suited the situation. In Leps’s nineteenth century, criminality was “a category that could include everything from thefts to strikes to sexual deviance” (132). Now it includes everything from border crossing to possession of marijuana seeds. Simply by criminalizing certain activities, certain segments of the population can be assigned to the criminal class and stripped of their rights, and those doing the criminalizing may not even have this as their agenda. In fact, they may never know this is happening. Once an activity is criminalized, it is assigned to the realm of “criminal justice.” Once here, its illegality is supported by the norm of “crime” and “criminal” as “bad.” The longer it stays here, the more its status as a crime is able to calcify, and its validity ceases to be questioned. For example, even arguments citing the obvious connection of poverty to simple acts of financial desperation such as shoplifting and check forgery eventually lose ethical ground after the acts have been felonized and the actors become criminals. As early as 1836, prison reformers were acknowledging that “lack of resources and education” prevent one from knowing how to “’remain within the limits of legal probity’” (Foucault, quoting Lucas, 276). “Legal probity” is the goal, and those who cannot achieve it are morally at fault, regardless of their reasons. Basically, it is “rhetorically ineffective to be for criminals” (Leps 69 [italics original]).
The qualification question puts this potent criminal subject right at the heart of the debate over voting rights. I will now demonstrate some of the levels on which this subject works.
Problems with the question of qualification
Direct effects on democracy
[The] real corporal disciplines constituted the foundation of the formal, juridical liberties… The disciplines should be regarded as a sort of counter-law.
- Foucault, Discipline and Punish (222 [emphasis added])
Katherine Irene Pettus argues that our polity itself has been shaped by the holes in its electoral body – that the absence of a point of view or voice defines a polity’s very character. As there has always been a portion of the population in the United States without a political voice – excluded by race, gender, economic class, crime or other factors – it follows that there is a United States that has not been realized, and we can have no idea what this United States would be like (Pettus 2004).
Pettus highlights the liberal contradictions of withholding political rights based on moral judgment, which she calls a problem of “double citizenship”: “A polity containing citizens proper and mere citizens without political rights is one that continues to institutionalize ethical-cultural criteria of virtue and status honor in a framework of universal legal membership.” (Pettus 2004, 81 [emphasis added]) While “virtue” is held up symbolically as a necessary but impossible qualification for the excluded group, considering their “criminal” status, for the in-group voting and virtue are unrelated – by the liberal, contractarian standards informing the foundation of American democracy, self-interest is assumed. In the words of Judith Shklar, speaking on the early days of the American republic, “No one had to be heroic to vote. It was more an act of self-promotion than self-sacrifice…” (Shklar 1991, 39).
Ironically, the “social contract” argument is often used in favor of felony disenfranchisement: in this argument the breaking of the law is equivalent to the breaking of the contract, and the offender “justifiably” loses her citizenship status (Hull 48). This argument rests on the pluralist assumption of the “rational, autonomous individual” who chooses to forfeit her citizenship status by breaking the law (Hull 47). Pettus answers this by introducing another type of “double citizenship.” She utilizes Charles Mills’ concept of the “racial contract” to explain how the dominant group – those possessing full citizenship status – can be unaware that another group of citizens is “not their political equals, but their subjects,” and holders of a separate, unacknowledged social contract.
[S]ince the specific context of the criminal justice system and felon disenfranchisement explicitly frames crime and punishment as individual and moral issues, or issues of public safety, the disciplinary (and racist) dimensions of the system are all but invisible to those who are not subject to it. (176)
The privileged group – those of us not living with felony convictions – is unaware of its privilege. The ontological distance between this group and its political subjects allows this double citizenship to exist unbeknownst to the privileged. This privileged group makes the policy decisions, such as criminal codes, based on moral judgments, that affect the other group, and the liberal-contractarian language of “rational, individual choice” gives the illusion that the group “criminals” has willingly surrendered its citizenship by its moral failings. But these moral standards are set by the privileged group, and supported by whatever racist or economic agenda is potentially being served at the time. Policy decisions can appear harmless or even beneficial to the affected population, such as anti-drug or prison reform laws, but if this population is not included in the decision-making or the agenda-setting, they are in fact nothing more than political subjects, easily kept in their place. In the next section I will discuss how the PFC population is not only “kept in its place” without political voice, but actually loses political voice as a result of attempting to reclaim it. By our most basic Dahlian definition of democracy, this situation is clearly undemocratic in its exclusionary aspect. It fails too by our broader definition, in that it is only the in-group setting the norms affecting the field of the possible for the out-group.
Pettus also points to the “federalism” paradox in the Guarantee Clause as another aspect of this double citizenship – based on their own qualification standards, individual states have the power to bar the state citizen from voting in national elections, the results of which she will have to live with as a national citizen (43). Again, according to our definition of democracy, wherein those affected by policy should be included in the demos, this situation is clearly, and in this case concretely, undemocratic.
Indirect effects on democracy
I will now move from the more tangible (though easily obscured, as exemplified in the “rational, individual choice” contractarian equivocation described above) liberal-democratic problems of the qualification question to those that are much harder to put one’s finger on.
In this section I will examine the ways the concept of qualification to vote affects consciousness, influencing the choices of voters, public officials, and PFCs themselves. Using the example of recent rights restoration legislation in Florida, I will demonstrate how the question of the qualification of the formerly incarcerated maintains, and even exacerbates, the marginalization of certain subgroups of the PFC population. Then, using as a case study the loss of the franchise by Massachusetts prisoners in 2000, I will look at how public perceptions about “criminals” led to the actual loss of the right to vote. Last in this section, I will look at the perceptions of the incarcerated themselves. In all of my examples, I will show the negative effects on the democratic field of the possible and the ability of PFCs to affect its boundaries.
Almost all public discussion and legislative debate around felony disenfranchisement emanates from the question of qualification. Ask anyone whether or not they support voting rights restoration for the formerly incarcerated, and you will likely receive an answer laced with normative language regarding the potential voters: They do/don’t deserve it. They’ve paid their debt to society. They are still untrustworthy. Some of them are good people. Some of them were innocent and wrongly imprisoned. If they plea-bargained, they are still criminals and not worthy of the right…
Qualification language also pervades the strategies of the rights restoration movement itself. Campaigns use testimonials by “reformed” former inmates who have “worked hard to reintegrate themselves into society,” often emphasizing marriage, children, and religious involvement. The theme of “giving back to the community” is common, as is the hierarchical moral categorization of offenses. Legislative compromises often exclude marginalized subgroups such as violent and sex offenders; for instance, the term “ex-offender” is recently being avoided within the rights-restoration movement simply because it sounds too much like “sex offender” (ARRC meeting).
The concept of qualification, when used in these ways, creates obstacles for the movement toward prisoners’ human rights. If ex-felons are worthy of having their rights restored for having reformed, or “paid their debt to society,” what does this say about those still in prison? As ex-prisoners testify in front of legislative committee hearings about their happy families and exemplary community service, those behind bars continue to be marginalized at best, at worst further stigmatized. People subject to such policies and often-arbitrary practices as the mandatory physical restraint of mothers giving birth in prison, overly complicated and punitive visitation rules, long-distance prisoner transfers, and the increasing and often indiscriminate use of control-unit isolation, not to mention glaring injustices already experienced in arrest and sentencing, face negative public perceptions of the incarcerated that keep these issues low on any agenda, if not completely invisible.
In fact, the recent flurry of ex-felon voting rights restoration, while certainly worthy of celebration by the newly enfranchised in Florida, Rhode Island and Maryland, actually fits the pattern of what Cathy Cohen calls “integrative marginalization.” In this scenario, the dominant group, faced with “resistance from the excluded group,” allows a more “respectable” part of this group certain increased mobility. (Cohen 1997, 581) While serving to pacify this resistance, integrative marginalization leaves the power relation intact (and in the case of the incarcerated, I argue, stronger.) For instance, the issue of felony disenfranchisement has had unprecedented visibility since the 2000 election, where the narrow margin of the final vote tally would, by all accounts, have been largely and unarguably in favor of Al Gore if Florida’s disenfranchisement laws had been even slightly less exclusionary. The increased threat of resistance through the public’s new awareness of the issue would, in Cohen’s model, stimulate the ruling group – those who have an investment in the status quo of disenfranchisement – to use an integrative marginalization strategy and allow a limited number of “upstanding” ex-felons into the polity, thus diffusing the tension while maintaining massive disenfranchisement. The recent decision of the Florida Board of Clemency is a perfect example of this, and I will return to it in detail.
Beyond its impact on the incarcerated, the question of qualification impacts the formerly incarcerated themselves. Integrative marginalization in a way continues a person’s sentence: even though someone has “done his time,” society is expecting exemplary behavior as proof that he is worthy of leasing an apartment or signing a W-4. The formerly incarcerated often experience what Marilyn Frye calls the “double bind,” where a person in a state of powerlessness is forced to choose between an artificial “good attitude,” and a more honest and realistic reaction to the difficulties of marginalization that can leave her looking like a “bad sport.” Either way, she loses (Frye 1983, 2). In the case of the newly released, particularly those on probation or parole, looking like a “bad sport” can leave a person homeless, childless, or back in prison. Added to this are the complications of returning to family and friends and social situations that may have been loaded in any variety of ways before incarceration, and being legally mandated to change one’s behavior despite these social pressures. In a worst-case scenario, to paraphrase one formerly incarcerated person, “you may find that the only place that will take you in is a crack house, and the only job you can get is dealing” (ARRC meeting).
Qualification language draws a moral line between the currently and the formerly incarcerated, perpetuating the invisibility of the incarcerated and their concerns, raising our expectations of those attempting to reenter society, and still leaving in place a variety of legal and political practices that marginalize both groups. The recent changes in Florida provide a fitting case study of some of these, and related, dynamics.
In early April, Republican governor Charlie Crist and the state clemency board adopted new rules that restore the following rights to ex-felons: voting, jury duty, the right to apply for occupational licenses, and the right to run for public office. Applicants must have paid all of their restitution before they can apply, and the new rules exclude those convicted of any of “a long list of crimes,” according to an ACLU memo (ACLU Florida Clemency memo 4/6/07). According to the New York Times, “Convicted murderers, sexual predators and ‘violent career criminals’ will still need an investigation of their case and a hearing before the clemency board. Most will probably not regain [the above rights]” (4/6/07). For their part, Florida state officials estimate that a half-million people have been newly qualified to vote. (NPR website) But as we see, even within the more “respectable” subgroup of ex-felons, the further subgroups of those unable to pay their restitutions and those convicted of crimes lower on the “moral scale” remain effectively excluded. And with Florida’s new kinder and gentler image regarding non-violent ex-offenders, those in prison stand even less chance of ever having a right restored that apparently requires, at very least, the moral authority that comes with release.
Under our dynamic definition of a democracy that depends on the ability of the polity to work on the boundaries of the field of the possible, the Florida example begins to illustrate the reflective, or circular, sort of degeneration that happens to democracy due to questions of qualification: exclusion of a group from the polity based on its moral standing leads to a less complete democracy, which in turn exacerbates the invisibility/powerlessness/censure of the group, lessening its ability to affect the norms ruling it, hence perpetuating and justifying its continued exclusion. The boundaries of the “field of the possible” are not merely left static; as I will demonstrate further, they actually shrink as PFCs attempt to expand them.
On August 2, 1997, the Boston Globe reported that a group of prisoners in Massachusetts had formed a Political Action Committee (PAC) and were awaiting approval from the Office of Campaign and Political Finance. According to the group’s founder, Joe Labriola, it hoped “to influence political debates on criminal justice issues including prison reform, sentencing laws, and alternatives to incarceration. But it also would promote awareness of social welfare issues like poverty and poor education - conditions that help crime flourish.” (Boston Globe 8/2/97) Within two weeks, Governor Paul Cellucci filed an executive order banning PACs in prisons, and went a step further by introducing legislation to disenfranchise the incarcerated. Commentators predicted that Cellucci was in for an uphill battle – under Massachusetts law the bill would require passage by two consecutive legislative sessions to become law (Boston Globe 8/13/97). Cellucci actually encountered little opposition: in step with the current tough-on-crime political climate, the state legislature passed the bill quickly, and in 2000 the voters of Massachusetts approved it in a referendum, stripping the state’s incarcerated population of the right to vote (Associated Press 9/9/00).
In this story, the prisoners had the support of mainstream organizations like the ACLU and the AFSC, among others. The opposition, in terms of organized advocacy, was limited to marginal victims’-rights groups such as the Alabama-based Victims of Crime and Leniency (Boston Globe 8/2/97). What the prisoners were really up against was the prevailing norms of society, and the burden of proof of qualification was on the prisoners themselves. The knee-jerk punitive reaction of the Massachusetts voters, a generally left-leaning electorate that would seemingly be sympathetic to the needs of the disadvantaged, hints at something deeper than political ideology. It hints at a deeply internalized assumption about a class of people – in this case “criminals.”
According to Iris Marion Young’s criteria for those oppressed under “cultural imperialism,” PFCs experience invisibility in that their perspective is not acknowledged as even existing by the dominant group (those of us not living with felony convictions,) yet they are subject to the same norms as the rest of society – including the stigma that they carry as “criminals.” Disenfranchisement only exacerbates the problem and highlights the paradox of cultural imperialism: these people remain invisible by their lack of a political voice, and the mainstream never misses them – yet if they attempt to gain visibility, as the Massachusetts inmates did, they are subject to the derision and censure that goes with their stereotyped, branded identity. (Young 59-60) In this case, their sudden visibility cost the inmates their electoral voice. Here we see the sort of spider-web nature of this issue in terms of Hayward’s democratic criterion of ability to act upon the boundaries of action – the more the fly wriggles to free itself, the more tangled it becomes.
This vicious cycle is both indicative of and dependent on a condition that Young calls “systemic” oppression, in which the “oppressed group need not have a correlate oppressing group” (41). There are certainly interests at stake in the continued disenfranchisement of the currently and formerly incarcerated, from the political interests served by vote dilution and census relocation to the material interests of the prison industry. The important point here is that these interests don’t need to solicit support – they automatically are supported by the almost universally accepted and invisible norm of “criminals” as bad people.
To work for the enfranchisement of this group, mainstream organizations and politicians risk branding also, discouraging them from going against the status quo to help. This situation fits another of Cathy Cohen’s forms of marginalization, “secondary marginalization,” in which the more mainstreamed members of an oppressed group actually suppress the voice of the more “nonconformist” members. (Cohen, 582) Dorsey Nunn, Program Director of Legal Services for Prisoners with Children, described in a recent talk the encounter of another PFC rights group for whom he works – All Of Us Or None – with the Congressional Black Caucus. The group was invited to Washington DC to participate in a gathering of the Caucus. Members spent the whole day passing out literature, but that evening when the group’s turn at the microphone came, the microphone “mysteriously” never made it their way (Dorsey Nunn talk, 4/17/07). In the words of Elizabeth Hull, “in this country rare is the public official who would so much as whisper in private that incarcerated felons deserve the franchise.” She refers to the “reputedly fearless” congressman John Conyers, who periodically introduces enfranchisement legislation, but is always careful to explicate its application “only to those who have fully completed their sentence” (Hull 139). Interestingly, the title of Hull’s chapter on the future of voting rights for the incarcerated is “Thinking the Unthinkable.”
Here we see the normative and substantive wages of the qualification question, writ large. As more “acceptable” sub-groups of ex-felons regain certain civil rights, prisoners themselves continue to be, and are increasingly, excluded from the polity and silenced on issues that affect their own human and civil rights. The Massachusetts case clearly exemplifies the reflective/circular degenerative nature of the damage done to democracy by felony disenfranchisement based on moral judgment. Joe Labriola and his fellow inmates attempted to act upon the boundaries of the field of the possible to expand it. If they had been successful, perhaps the boundary of reviled “criminal status” would have, by the inmates’ very initiative to change their world for the better, broken down to some degree both in their self-perception and in that of the outside world. But this status prevented the very expansion necessary for its dismantling. And the field actually shrank. Though the inmates undoubtedly felt this loss of democratic territory, there is additional territory that was never even realized, containing possibilities we cannot know.
Of course, the Massachusetts case was one where prisoners actively pursued political participation, and the perceptions of “the criminal” on the part of the public and the officials sparked the reaction. In all of the above examples we see what could be understood as a top-down power play based on the perceptions of the in-group. But what about the perceptions of PFCs themselves?
One and only rebel child,
From a family meek and mild:
My Mama seemed to know what lay in store.
Despite all my Sunday learning,
Towards the bad I kept on turning,
'Til Mama couldn't hold me anymore.
And I turned twenty-one in prison doing life without parole.
No one could steer me right but Mama tried, Mama tried.
Mama tried to raise me better, but her pleading I denied.
That leaves only me to blame 'cause Mama tried.
- Merle Haggard (A formerly incarcerated person)
A persistent theme in the lives of PFCs is that of “giving back to the community.” In Manza and Uggen’s interviews with incarcerated people, inmates display a variety of adaptations to the idea of “earned redemption,” highlighting the complexity of this concept. Many describe their experience of community service, such as involvement in Alcoholics Anonymous or speaking to kids about incarceration, as personally rewarding and adding a sense of self-worth that was perhaps previously lacking (Manza and Uggen, 159-161). Still, while this is not an argument against such programs encouraging public-prisoner interaction, which undoubtedly have the potential for personal and social uplift (of course, any change in routine or visit from those on the outside is generally an exciting event for prisoners, according to Tucson AFSC Prison Program Director Caroline Isaacs) there seems also to be what Gaventa refers to as a “third-dimensional” power relation at work, in which the preferences and self-conception of a group are actually engineered to keep them willingly powerless (Gaventa 1980). The creation of the criminal subject didn’t happen only in the minds of the privileged – the idea was bought wholesale by society. One interviewee, Pamela, who makes blankets for children, refers to the value of this activity as “doing something here that’s not about me. You know that’s not selfish…” (M&U, 160) Coming from a woman who was incarcerated for falsifying a drug prescription due to an addiction – not exactly a crime of selfishness – has been stripped of many of her fundamental rights, stigmatized in the eyes of society, and who probably owns very little in the way of property, this is a striking statement. Of course, Pamela is probably not referring to her “crime” – one can imagine that prison life encourages pathologically individualistic behavior through subjecting prisoners to a constant condition of lack. If this is indeed the case, blanket making would be a refreshing change of agenda. Still, the self-deprecating tone of her statement hints that there is a certain institutional expectation on her behavior and attitude. Interviews with other inmates with a less rosy outlook throw into relief this possible third-dimension construct:
“[Wanting to give back to the community is] something that they were taught in treatment. They got a therapist that installs that inside of their head. That if you take something or hurt somebody… don’t you think you should give back? ‘Cause only a bad person wouldn’t. So they make a person think maybe they should feel that way. … I don’t feel I owe anything. I owe myself something. I owe myself a better life…” – Henry
“I really get kind of peeved when people say ‘give back to the community’ because I’m not part of the community anymore as far as I can see… I’m like well, hey, community doesn’t want a damn thing to do with me, why should I go back and give anything to do with the community?” – Paul (Manza & Uggen, 162)
While these men may not have as “pleasant” an attitude about their relationship
to society as Pamela, they seem to have a more realistic grasp on how self-conceptions are institutionally shaped. Clearly the moral requirement of “giving back to the community” is being held up as a sort of path back to “normalcy.” One wonders – is this “normalcy” ever actually attainable by these people, and, if this debt to society remains even after parole and probation, at what point has a former convict finally given back “enough?” Again, in terms of our definition of democracy, the ability to work on the boundaries of he possible would arguably require a minimum of energy and sustained attention on the part of the actor. When one is shouldered with an exhaustingly unpayable debt to society, this minimum may be difficult to achieve, let alone maintain.
One’s ability to act on the boundaries of the field of the possible could also be limited by self-conceptions. How likely is a person who defines himself as a “criminal” to go out of his way to expand the democratic horizons of that criminal? He would have to first reject the identity “criminal.” While Henry and Paul might be unconvinced of their criminal status, the protagonist of Merle Haggard’s hit song appears doomed to it.
Historical use of the qualification question
Having looked at the qualification question’s effects on the perceptions of the general public and PFCs themselves, I will now round out my survey of the problems with the qualification question with a brief discussion of the prominent ways in which it has been used overtly and covertly throughout the history of the United States to intentionally disempower certain parts of the population.
There is ample evidence that felony disenfranchisement has been used since the founding of the Republic to exclude those considered unqualified to participate in the polity, based on race and economic class. The chart below should help to clarify the way in which felony disenfranchisement has maintained a voiceless underclass in the United States.
At the ratification of the Constitution, the franchise was limited to the “interested” class – propertied white men. At this time, a minority of states disenfranchised felons. As the franchise opened to non-propertied white men in the 1840’s, northern states began to adopt disenfranchisement laws, effectively excluding again the poorer class. At this time the South still had its voiceless work force in the slave class. This changed after the Civil War, as freed African American men gained the right to vote. This was soon followed by massive felony disenfranchisement legislation, along with other Jim Crow laws, decimating the Black vote. The Civil Rights Act of 1965 reversed this, but was again soon followed by a wave of new drug laws, stiffer sentencing, and the stripping of felon voting rights in more states (after almost a century of little legislative activity on this issue.) Again, the African American vote is in decline. The chart above may begin to give an impression of how felony disenfranchisement has been used for purely political purposes by the exclusion of certain groups: every major wave of enfranchisement (excepting that of women) has been almost immediately followed by a massive wave of felony disenfranchisement targeting the newly enfranchised population. While this chart specifically includes the impact on the African American vote, other populations have been impacted as well, particularly Latinos at this time. Another consideration is that the number of women in prison is rising at close to double the rate of men, and that women’s voting activity rose dramatically in the two decades directly preceding this new trend in imprisonment.
Political interests have, of course, also used the right to the franchise in reverse. The recent movement for ex-felon voting rights has had major funding from the Democratic Party, which would stand to gain victories by enfranchising this largely minority and working class population (Dorsey Nunn talk). Similarly, in the post-Civil War years the enfranchisement of African Americans was pushed by the Republican Party to bolster its ranks, but was quickly quelled as black men “threatened” to become a political presence (Manza & Uggen, 63).
“Criminal” acts identified with certain populations have served legislatures wishing to “fine tune” the electorate. In the late nineteenth century, interests in the western territories pressured Congress into passing legislation disenfranchising for the crimes of bigamy and polygamy, specifically to marginalize the growing population of Mormons. (28) And the felonizing of “Negro” crimes like petty larceny, as opposed to those more likely to be committed by whites, such as murder and rape, was used expressly in turn-of-the-century constitutional conventions of Southern states to disenfranchise African Americans for most of the twentieth century, along with the poll tax, literacy tests, and grandfather clauses (41-43). As was discussed above in the Florida example, the very idea that a person can be “qualified” to vote provides an ideological basis on which any crimes defined by the in-group as lower in the moral hierarchy (in the case of “Negro” versus “white” crimes, ironically upside-down from today’s hierarchy in which, for instance in Florida, those convicted of murder and rape are considered less worthy of rights restoration than those convicted of non-violent crimes) can be used to remove political voice.
Felony disenfranchisement has been used as a tool since the nation’s inception for the exclusion of specific groups from the politeuma. When the unquestioned low moral status of the “criminal” class is used in concert with racist or bigoted moral judgments of groups such as African Americans or Mormons, these groups can be effectively stripped of political rights, hence maintaining a permanent underclass of people who lack the “moral high ground” to dispute their status.
Of course, the burden of proof in this democratic betrayal is on the excluded, and the explicit language of racism is gone, replaced now simply by an explosion in the number of people of color convicted of felonies (Sentencing Project website). Recent legislative and media attention to the disparity between sentencing for possession of powder cocaine (an “upper-class” crime) versus crack cocaine (a “lower-class” crime) seems to acknowledge that race-based or class-based sentencing laws did not exactly die out with Jim Crow. What is less publicized is the well-documented preponderance of harsher convictions for people of color, the higher likelihood of African American and Hispanic youth being tried as adults (losing the right to vote before they are old enough to use it,) and the felonizing of more “crimes of poverty” every year across the country. Manza and Uggen, after tracing correlations between race and felony disenfranchisement, don’t mince words in their conclusion: “When African Americans make up a larger proportion of a state’s prison population, that state is significantly more likely to adopt or extend felon disenfranchisement.” ( Manza & Uggen, 67)
Conclusion
I have attempted to enumerate the major problems with the question of qualification in the debate over felony disenfranchisement, and in particular the ways in which it undermines democracy in the United States. I have looked at the more traceable, direct damage done to our democratic mechanisms, and at the more insidious, invisible, damage done on the level of consciousness, defining our boundaries of the “thinkable.” I have also demonstrated how the question of qualification has served purely political agendas to silence select groups through disenfranchisement.
Considering the fundamental concept on which the entire issue of felony disenfranchisement rests – the criminal subject – it stands to reason that we need to re-examine our beliefs and rework our language. Clearly “it is rhetorically ineffective to be for criminals,” but it is easier to be “for the incarcerated,” or “for people living with felony convictions.” Perhaps the most important work being done at this time is by activists in the PFC community who are intentionally renaming their status – throwing off the identity “felons” in favor “incarcerated and formerly incarcerated persons,” linguistically exorcizes the crime and the prison from the body, while still acknowledging the political reality of their status within the system. Dorsey Nunn sees this renaming as a harbinger of a new civil rights movement – much the way the shift from “Negro” to “Black” accompanied that of the mid-twentieth century.
I am proposing that in addition to the linguistic work of renaming, we need to be conscious of how moral judgment is still implied in the terms of the debate over rights. Restoration advocates still use the language of qualification in legislative debates, and substantive gains for the rights of the formerly incarcerated are being made using this language where perhaps an avoidance of it would not help just yet. If any major gains are to be made in the long term, however – not only toward voting and other civil rights, but toward human rights and the most basic capacity of a class of people to live a dignified life – questions such as the morality, virtue and competence of people with felony convictions need to be seen for the real humanitarian and democratic problems they obscure, and ultimately abandoned as artifacts of a different age.
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Additional information for this paper was gleaned from a presentation by Dorsey Nunn, Program Director for Legal Services for Prisoners With Children, in Tucson, Arizona, on April 16, 2007, and from the inaugural meeting of the Arizona Rights Restoration Coalition, November 3, 2007.
