Inmates at the Darrington Unit men’s prison, near Houston.Marjorie Kamys Cotera/Alamy
U.S. Attorney General Eric Holder has been taking stands for justice lately, for which he is to be applauded. On Feb. 11, in a speech at Georgetown University, he issued a plea for states to lift bans on voting by ex-felons, also called returning citizens. On the heels of his earlier suggestion that prosecutors and legislators re-examine mandatory sentencing for nonviolent drug offenders and disparities in crack cocaine sentences, this latest call suggests a new pattern of priorities coming out of the office of the attorney general. The New York Times predicted Holder’s suggestions would “elevate issues of criminal justice and race in the president’s second term and create a lasting civil rights legacy.” Holder is reportedly the first attorney general to take up this cause.
It has been a long time coming. Laws that deny ex-offenders the vote have a long and dark history. Although felons were prevented from voting in most states from the very beginning of the republic, after the Civil War, these laws were greatly expanded in the South — and virtually all felons in those states were black. The South’s loss of the Civil War in 1865 presented former slave owners with dual dilemmas. Their captive labor supply had been liberated, and those formerly involuntary workers were going to be allowed to vote. In the words of one former slave, “bottom rail on the top.” Soon after the withdrawal of federal troops in 1877, however, white entrepreneurs of the South solved both problems with two linked concepts: convict leasing and felon disenfranchisement. First, massive numbers of African-Americans were arrested for little or no reason and sent to work in mines, mills and fields, creating an almost limitless supply of effectively free labor. Under newly enhanced (and in some cases newly created) laws, these ex-felons were then forever after denied the right to vote. This process also planted in the American psyche a viciously tenacious stereotype of African-American criminality. Douglas Blackmon’s Pulitzer Prize–winning book “Slavery by Another Name” describes these circumstances in excruciating detail: The depraved system has made enduring marks on today’s criminal justice landscape, in the form of felon disenfranchisement laws and racially disparate arrest, conviction and sentencing practices. Michelle Alexander, in her book “The New Jim Crow,” compares these laws and today’s mass incarceration of inmates of color to historical injustices.
The Voting Rights Act of 1965 struck down most of the old Jim Crow restrictions that prevented blacks from voting, but laws against felon voting have survived multiple court challenges; there has been little sympathy for criminals in these proceedings. Nearly 6 million Americans cannot vote because they have committed felonies. Of those, one-third are African-Americans. Twenty-two states allow ex-felons to vote after completion of sentences, parole or probation. Only in Maine and Vermont are prisoners able to vote even while in prison. Eleven other states have imposed onerous restrictions. In Florida, arguably the capital of bad voting, fully 10 percent of voting-age residents have been disqualified because of a record of imprisonment in a state penitentiary; this includes more than 1 in 5 African-Americans of voting age. The Florida constitution effectively bars nearly all ex-felons from voting for the rest of their lives. According to the Sentencing Project, Florida has the highest and most racially disparate rate of disenfranchisement. Of the estimated 5.8 million Americans nationwide who are affected by these laws, approximately one quarter of them — 1.5 million — live in Florida, where only 6 percent of the U.S. population resides.
In his speech, Holder singled out Florida for its unreasonably harsh restrictions. The state’s ban applies to an almost ludicrous range of offenses, from first-degree murder to disobeying a police officer to messing with someone’s crab trap. The statutes defining felonies are broken into three grades; the third includes some very minor offenses, but even third-degree felonies are covered under the voting ban. Figures published by Florida in 2010 indicate that 70 percent of inmates are serving sentences for nonviolent offenses and 61 percent had no prior convictions; one-fifth are drug offenders. African-Americans comprise half of all Florida prisoners but only 15 percent of the state’s overall population.
Florida’s exploding prison population has greatly reduced the number of eligible voters. In 1988 there were 38,000 prisoners; by 2008 there were more than 100,000. Despite a declining crime rate, two factors are likely to lead to even greater increases in the future: plea bargains and private prisons. The lack of effective legal representation and clogged court dockets have greatly increased the likelihood of a guilty plea, even when the defendant is not actually guilty. Prosecutors, who have a great deal of discretion in setting charges, can negotiate with defendants who, if found guilty, could face much longer sentences, whereas judges’ discretion is limited by mandatory sentencing laws. Most indigent defendants, who account for the vast majority of arrests, take the deal. In Florida the ratio of plea deals to jury trials has gone from 12 to 1 in 1970 to an astounding 40 to 1 in 2013. This is good business for the private prison industry, which has a strong foothold in Florida. The GEO Group and Corrections Corp. of America, the country’s largest private prison operators, have lucrative contracts with the state, where it costs much more to incarcerate a young man than it does to send him to college. These arrangements amount to 21st century convict leasing, in which prisoners’ bodies are valuable commodities and any labor that can be extracted from them is a bonus.
Indeed, the taxpayers of Florida shell out in excess of $1 billion per year to imprison nonviolent offenders. Research indicates that re-enfranchising ex-felons cuts the rate of recidivism by at least 10 percent, which could save and reroute millions of dollars a year toward education or other useful purposes. In 2007 then-Gov. Charlie Crist issued an executive order that restored voting rights to nonviolent felons. During the three years remaining in his term, more than 150,000 had their rights restored. A 2011 study conducted by the Florida Parole Commission found that the rate of recidivism in this group was one-third lower than the general rate. (Other studies have found rates of decline that vary from 10 to 27 percent.) Restoring civil rights seems to encourage greater stability among former inmates who were nonviolent.
When Florida’s new governor, Rick Scott, took office in 2011, one of his first acts was to rescind Crist’s order, and he imposed an even stricter ban. Upon release and completion of all requirements, including paying restitution and other outstanding fees, former inmates must wait five years before they can even apply for a restoration of their voting rights. It takes another seven years for a petition to come before the state’s clemency board, which considers a single case at a time. Any infraction, even a false arrest, restarts the clock. In effect, there is close to zero chance of success.
Skyrocketing costs and growing appreciation for the unfairness of this system have led some states to rethink their laws. Since the late 1990s, 23 states have changed their policies to be less restrictive. Florida went in both directions, as did Iowa. (Its Democratic former Gov. Thomas Vilsack restored rights that Republican incoming Gov. Terry Branstad subsequently rescinded.) Electoral considerations, not fairness or fiscal sanity, are ruling these gubernatorial decisions: Research shows that ex-felon voters tend to be Democrats and that allowing them to vote can make a difference in an election. (Studies have found that had ex-felons voted in Florida in 2000, Al Gore would have won the presidency.) We would all be better off — ex-felons, their families and communities, state budgets, our souls — if these bans could be lifted. Holder has no real power to change this, but shining light on the problem could help right a historic wrong.