An Overview of Disenfranchisement

Photo Credit Robert Cantu

By Dru Spiller

Voting is a central part of civic duty and a basic element of democracy. Despite its importance, this right is often denied to individuals who have been convicted of a crime.

In a 2004 case, Hirst v. United Kingdom, the European Court of Human Rights ruled that a blanket ban on prisoner voting was unlawful and a breach of prisoners’ human rights. The court held that “‘[P]risoners in general continue to enjoy all fundamental rights and freedoms guaranteed under the Convention save for the right to liberty […]’, and that ‘[a]ny restrictions on these rights must be justified.” The court introduced a proportionality concept to the case. The European Court of Justice elaborated on this concept in the 2015 case of Thierry Delvigne v. Commune de Lesparre Medoc and Prefet de la Gironde, declaring that EU member states may use a proportionality test to “take into account the nature and gravity of the criminal offense committed and the duration of the penalty.”

In 2016 Penal Reform International published a brief from eight international law firms reviewing the global extent of disenfranchisement of detained persons. They found that in 45% of the jurisdictions studied imprisonment is automatically followed by disenfranchisement. They also found that in 55% of the jurisdictions prisoners who did have the right to vote were often still facing restrictions and/or conditions, usually based on the severity or type of offense and/or length of the sentence imposed. Prisoners may vote in countries like Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. Post prison time, a majority of the countries reinstate prisoners right to vote.

It is only a minority of countries whose disenfranchisement is not automatically reinstated post-release: Belgium, Luxembourg, Kuwait, Poland, and the United States.

The United States locks up more people, per capita, than any other nation in the world. This is especially concerning given that the majority of states restrict or heavily condition prisoner’s rights and access to voting. Out of fifty, only Maine and Vermont allow prisoners to vote while incarcerated. Once released back into the general population, thirty-five states further exclude ex-convicts on parole and another thirty-one states exclude persons on probation. Prisoners convicted of specified offenses may vote after a waiting period in eight states and four states deny the right to vote to anyone with a felony conviction.

In 2016 an estimated 2.5% of the voting age population, excluding Washington, D.C., could not vote do a felony conviction. Felon disenfranchisement disproportionately affects people of color and lower income communities. Over 7.4% of the total adult African American population is disenfranchised in the US. Some states even have rates rising above 20%. These high rates are partly due to discriminatory effects of federal and state legislation such as mandatory minimum sentencing and the bail system.

It is also an effect of a criminal justice system that is historically tied to oppression and discrimination. Disenfranchisement laws were brought to America by European colonists from a time when criminals were banished and ostracized. These laws became popular after the passage of the Fifteenth Amendment opened up the vote to newly freed African Americans, as a way to employ race-neutral means to exclude blacks from voting.

A 2013 report from the OHCHR stated that “The felony disenfranchisement laws, policies and practices of the United States are inconsistent with general principles of international human rights law, norms and standards. These practices are not only in direct violation of U.S. obligations under the International Covenant on Civil and Political Rights (ICCPR) [Article 25] but they also contravene the principles as established by the Universal Declaration of Human Rights (UDHR) [Article 21] the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) [Article 5], and the American Declaration of the Rights and Duties of Man (ADRDM) [Article XX].” As part of their recommendations, the Committee has also called for the restoration of voting rights to people released from prison and raised concerns that the practice of denying voting rights to people with felony convictions disproportionately impacts minority groups and are counterproductive to efforts to reintegrate those exiting prison.

Disenfranchisement laws do not serve any purpose in nations that seek to reintegrate and re-educate citizens convicted of crimes rather than to ostracize them. These laws strip the presently and formerly incarcerated of a means to voice their opinion and enact legislative change that could benefit their communities. The stripping of these rights is especially concerning as it disproportionately affects communities which have historically been discriminated against in other ways.