Felony Disenfranchisement: A History of Discrimination

A History of Discrimination

Felony disenfranchisement laws date back to the earliest days of the U.S. republic, and to Europe before that. Early European disenfranchisement laws seem to have been limited to the most serious crimes, and were implemented by judges in individual cases. As American states drew up their constitutions, many of them incorporated some form of disenfranchisement laws into their statutes.

At the end of the Civil War, however, lawmakers found new uses for felony disenfranchisement laws. The newly adopted Fifteenth Amendment allowed African Americans to vote – in theory. In practice, Southern whites soon began to rewrite their state constitutions to remove African Americans from politics. Declaring proudly and explicitly their goal of white supremacy, these lawmakers used a variety of legal schemes to disempower African Americans, including literacy tests, poll taxes, grandfather clauses and all-white primaries. Most of these laws have been called out as racist and unconstitutional, and have been wiped from the books. Felony disenfranchisement laws are the notable exception.

Mississippi’s 1890 constitutional convention was among the first to use felon disenfranchisement laws against African Americans. Until then, Mississippi law disenfranchised those guilty of any crime. In 1890, however, the law was narrowed to exclude only those convicted of certain offenses – crimes of which African Americans were more often convicted than whites. The Mississippi Supreme Court in 1896 enumerated these crimes, confirming that the new constitution targeted those “convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.”

Other states followed suit. Many newly disenfranchisable offenses, such as bigamy and vagrancy, were common among African Americans simply because of the dislocations of slavery and Reconstruction. Indeed, the laws were carefully designed by white men who understood how to apply criminal law in a discriminatory way: the Alabama judge who wrote that state’s new disenfranchisement language had decades of experience in a predominantly African-American district, and estimated that certain misdemeanor charges could be used to disqualify two-thirds of black voters.

“What is it we want to do?” asked John B. Knox, president of the Alabama convention of 1901. “Why, it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.” (Emphasis added)

The laws worked. A historian later hired by Alabama state registrars found that by January 1903, the revised constitution “had disfranchised approximately ten times as many blacks as whites,” many for non-prison offenses.[3]

Such schemes would soon be approved by the highest courts in the land. In 1896, the Mississippi Supreme Court endorsed with devastating clarity the discriminatory intent of disenfranchisement laws after Reconstruction. The Mississippi constitutional convention of 1890, wrote the court,

… swept the circle of expedients to obstruct the exercise of the franchise by the negro race. By reason of its previous condition of servitude and dependence, this race had acquired or accentuated certain particularities of habit, of temperament and of character, which clearly distinguished it, as a race, from that of the whites – a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone . . . . Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder, and other crimes in which violence was the principal ingredient, were not.

This understanding was not confined to the South. In 1898, the U.S. Supreme Court implicity endorsed Mississippi’s discriminatory disenfranchisment laws in Williams v. Mississippi, a case that legalized all-white juries. Disenfranchisement laws were challenged again in the Supreme Court in 1974. The Court’s decision in that case, Richardson v. Ramirez, not only upheld the laws, but also made future legal challenges harder. It took until the 1985 case Hunter v. Underwood, brought by two men who lost their voting rights in Alabama due to a “crime of moral turpitude” – writing bad checks – for the Court to agree that racism was an explicit purpose of felony disenfranchisement laws. But the Hunter decision only struck down those laws motivated by racist intent – and only the most explicit, purposeful intent. Laws with less overt racist effects, like today’s felony disenfranchisement laws, have been left standing.

Notes:
[3] These state schemes to deny the vote to black residents were not confined to the South. Plaintiffs in Hayden v. Pataki allege that in a series of constitutional conventions convened in New York beginning in 1821, delegates adopted voter disqualification provisions that denied the vote to residents convicted of “infamous crimes” in order to disenfranchise blacks. Hayden v. Pataki, ooCiv. (S.D.N.Y.) (Pl.Compl).

(From a Demos report by Steven Carbó, Ludovic Blain, and Ellen Braune, Democracy Denied: The Racial History and Impact of Disenfranchisement Laws in the United States [pdf 360KB])