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The Project. What are the origins of voting restrictions on the voting rights of criminal offenders? How have they varied across countries and in the states? How is disenfranchisement justified legally, politically, philosophically, and in the criminal justice?

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The Project

  • What are the origins of voting restrictions on the voting rights of criminal offenders? How have they varied across countries and in the states?

  • How is disenfranchisement justified legally, politically, philosophically, and in the criminal justice?

  • Does felon disenfranchisement have any impact on democratic elections, or is its impact largely symbolic?

  • Does the right to vote have anything to do with the likelihood of recidivism or desistance?

  • Are existing processes of restoration through clemency fair and reasonable?

  • Do these laws enjoy public support today?

  • What are some of the policy implications?


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Pre-Modern Origins of Felon Disenfranchisement

  • ANCIENT GREECE: loss of citizenship rights (atimia)

  • ROMAN EMPIRE: offenders subject to infamia

  • RENAISSANCE EUROPE: “outlawry” /“civil death”: loss of all civil rights

    • ENGLISH LAW: attainder, in extreme cases “dead in law”

      Early American History:

  • Colonial Period: “moral qualifications” a key requirement for participation in early colonial township


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How did the Right to Vote Become an Entitlement in the US?

  • Constitution?

    • States allowed the right to regulate access to the ballot

    • Amendments setting limits on states (14th, 15th, 19th, 24th, 26th)

    • Voting Rights Act and Supreme Court cases of the 1960s establishing so-called ‘strict scrutiny’ of state restrictions


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Allowable Restrictions

  • Legal Immigrants

  • Children

  • Uncounted Ballots?

  • Felons and Ex-felons

    *14th Amendment (1868):

    • section 1=equal protection clause

    • Section 2=removes protection for those convicted of rebellion or other crimes

    • Richardson v. Ramirez (1974)


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Criminal Justice Master Trends

  • Rise in incarceration and conviction rates (over 600% since 1972)

  • 2 million incarcerated, 7 million under correctional supervision

  • Crime rates stable (trendless fluctuation) until the early 1990s, then falling


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State Disenfranchisement Laws, 2004


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Disenfranchisement in 2004

  • Approximately 5.3 million disenfranchised felons in the U.S.

    • 2.4% of the voting age population, 2.75% of the voting eligible population

  • 2 million African Americans

    • 8% of the African American VAP, and about 15% of all black men

  • Ex-felon estimates adjusted for mortality and recidivism to avoid double-counting


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Estimated Distribution of Legally Disenfranchised Felons in the U.S., 2004


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overall vote dilution


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Size of Disenfranchised Felon Population, 1960-2004


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Inmate Voting Rights Around the World

Europe:

  • No Restrictions: Bosnia, Croatia, Cyprus, Denmark, Iceland, Ireland, Finland, Greece, Latvia Lithuania, Macedonia, Netherlands, Poland, Slovenia, Spain, Sweden, Switzerland, Ukraine

  • Selective Restrictions: Austria, Belgium, France, Germany, Italy, Malta, Norway, San Marino

  • Current Prisoners Disenfranchised: Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg, Romania, Russia, United Kingdom

    Elsewhere:

  • No Restrictions: South Africa, Canada, Israel

  • Selective Restrictions: Australia, New Zealand


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Percentage of States Disenfranchising Felons and Ex-Felons, 1788-2002


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Two Key Historical Conclusions for Contemporary Debates:

  • Laws Precede Recent Changes in Criminal Justice System

  • Legal changes since 1960 have generally been in a liberalizing direction


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What if 1960 Laws Existed in 2000?


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What is the Contemporary Impact of Disenfranchisement?


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A Counterfactual Approach

  • What would happen if felons and ex-felons had been allowed to participate in national elections?

  • Would some narrow elections won by Republicans have been won by Democrats instead?


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Methodological Issues

  • No survey data measuring voting behavior of felons or ex-felons

  • Cannot assume felons would turnout and vote like rest of the population

  • Solution: “Match” characteristics of the felon population to information about turnout and voting behavior among similar eligible voters, as measured through election surveys


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Turnout Percentage

Overall Turnout Rates and Estimated Turnout among Disenfranchised Felons, Presidential Elections 1972–2000


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Democratic Preference Overall and among Felons, Major Party Voters in Presidential Elections, 1972-2000


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What is the Impact of Felon Disenfranchisement?


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Estimated Impact of Disenfranchisement on Presidential Elections

2000 Election: What if Felons had been Allowed to Vote? .

Actual Hypothetical*Net Counter-

(R)Total Est. Est.Lost (D)factual (D)

UnitMarginDisfranc’d Turnout %DemVotesMargin

United States-539,947 4,695,729 29.7%68.9%527,171 1,067,118

Florida537 827,207 27.2%68.9% 85,050 84,513

50% Turnout 13.6% 68.9% 42,525 41,988

Ex-felons Only 613,514 13.6% 68.9% 31,540 31,003

1960 Election: What if we Disenfranchised in 1960 at the Rate we do Today? .

Actual Counter Net Counter-

(D)Total Factual Est.Lost (D)factual (R)

UnitMarginDisfr’d Disfr’d Turnout VotesMargin

United States118,550 694,329 2,502,211 40% 361,576243,026

50% Turnout 20% 180,788 62,238

*Hypothetical assumes 75% Democratic party preference.


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Estimated Impact of Felon Disenfranchisement on the U.S. Senate 1978-2000

Total Turnout Pct. Actual Counter- Held Actual Counter-

Year State Disfr’d Rate Dem. Margin factual Until Senate factual

1978VA93,56416%80% 4,721 -4,5472002+ 58:41 (D) 60:39 (D)

1978 TX 190,36913% 80% 12,227 -3,1812002+ 58:41 (D) 60:39 (D)

1982 - 54:46 (R) 52:48 (R)

1984 KY 75,06438% 69% 5,269 -5,6552002+ 53:47 (R) 50:50 (-)

1986 - 55:45 (D) 58:42 (D)

1988 FL 293,51226% 79% 34,518 -11,2172000 55:45 (D) 60:40 (D)

1988 WY9,98224% 79% 1,322 -1162006+ 55:45 (D) 60:40 (D)

1990 - 56:44 (D) 61:39 (D)

1992 GA 131,91130% 75% 16,237 -3,0522000 57:43 (D) 63:37 (D)

1994 - 52:48 (R) 54:46 (D)

1996 - 55:45 (R) 51:49 (D)

1998 KY 126,04025% 70% 6,766-5,8482004+ 55:45 (R) 51:49 (D)

2000 - 50:50 ( - ) 54:46 (D)

In Virginia, Warner (R) def. Miller (D) in 1978, Harrison in 1984, Spannaus in 1990, and M. Warner in 1996; In Texas, Tower (R) def. Krueger (D) in 1978; Gramm (R) def. Doggett in 1984, Parmer in 1990, and Morales in 1996; In Kentucky, McConnell (R) def. Huddleston (D) in 1984, Sloane in 1990, and Beshear in 1996; In Florida, Mack (R) def. MacKay (D) in 1988 and Rodham in 1994; McCollum (R) def. Nelson (D) in 2000. In Wyoming, Wallop (R) def. Vinich (D) in 1988 and Thomas (R) def. Sullivan (D) in 1994; In Georgia, Coverdell (R) def. Fowler (D) in 1992 and Coles in 1998; succeeded by Miller (D) in 2000. In Kentucky, Bunning (R) def. Baesler (D) in 1998.


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III. meaning - political life of felons

  • General survey: Youth Development Study

  • Those who experience criminal sanctions

    • …have lower turnout, but much of the effect is due to differences in education

    • …are less trusting of the government and express lower levels of political efficacy

    • …may be more likely to self-identify as political independents


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political attitudes


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meaning to those affected

  • Felon interviews: 33 Minnesota prisoners, probationers, and parolees.

    • Political experiences and participation

    • Salient issues

    • Stigma and reintegration

    • Partisanship, trust, other civil disabilities

  • Diverse in race, gender and age; all major offense categories represented

  • Quick sample today


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Dylan: irrationality and reintegration

  • What is the fear that someone who has committed a felony would actually have a voice? … we’re going to have some organized crime guy running for office, and we’re all going to get behind him?

  • They have the expectation that you’re going to reintegrate back into society, become a functioning, contributing member of society. But yet you’re not allowed to have a say-so… I can’t imagine the logic behind that other than as a continuing form of punishment, which again makes no sense. The whole principle of our legal system is you pay your debt. Debt’s done, you move on.


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Pamela – salt and loss

  • [G]etting back in the community and being a contributing member is difficult enough …‘Yeah, we don’t value your vote either because you’re a convicted felon from how many years back’ … [I] have paid for that and would like to someday feel like a, quote, ‘normal citizen,’ a contributing member of society, and you know that’s hard when every election you’re constantly being reminded… a little salt in the wound. You’ve already got that wound and it’s trying to heal and it’s trying to heal, and you’re trying to be a good taxpayer and be a homeowner … one little vote, right? But that means a lot …

  • [L]oss after loss after loss. And this is just another one. Another to add to the pile… I am looking forward to and trying to prepare to be that productive member of society … you telling me that I’m still really bad because I can’t [vote] is like making it sting again. It’s like haven’t I paid enough yet? … You can’t really feel like a part of your government because they’re still going like this, ‘Oh, you’re bad. Remember what you did way back then? Nope, you can’t vote’.(prisoner, 49)


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Paul – taxation & voice

  • I have no right to vote on how my taxes is going to be spent or used, which I have to pay whether I’m a felon or not. …I’m not saying give back gun rights or anything like that … But giving back voting rights is another way to make a person feel part of that community. How can you feel that you’re giving back to a community … when you’re exiled from it by not being able to vote and have a voice in it?

  • I really get kind of peeved when people say ‘give back to the community’ because I’m not a part of the community anymore as far as I can see it … And so when they [say], ‘What are you going to give back to the community for this and for that?’ 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? (prisoner, aged 37)


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Peter – “a racial thing”

  • I think that they just want less blacks to vote, you know what I’m saying? ‘Cause 90% of people’s that’s in jail, they’s black anyway, or on probation or whatever. I feel, I feel that’s what it is though. Less black people to vote, you know? … When less of us vote, that’s more for the other races to vote. …

  • [L]ook at any jail across the world- we the most people that’s in there. We the most people that’s overcrowding the jails so that’s why I think it’s a racial thing towards us, you know… I mean it’s a white world, you know? — Peter, probationer, age 24


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IV. might voting affect crime?

  • Iowa Governor Tom Vilsack, 2005

    • “research shows that ex-offenders who vote are less likely to re-offend.”

  • National Review’s Peter Kirsanow

    • “the problem with Vilsack’s claim is that there is absolutely no research to support it. Not one longitudinal study exists showing the effects of the restoration of voting rights on crime rates or recidivism.”


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theorizing the relationship

  • Criminology

    • Adult social bonds to work, family (and community?)

    • Restorative justice, reintegration, identity

  • Democratic Theory

    • Educative, constitutive, and expressive voting

    • Democracy molds ‘virtuous’ citizens who identify with the polity and its norms and values

  • “voting is a meaningful participatory act through which individuals create and affirm their membership in the community and thereby transform their identities both as individuals and as part of a greater collectivity” (Winkler)


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reasons for skepticism

  • Turnout: they wouldn’t vote anyway (Miles)

  • Self-selection: voters are “virtuous” already

  • Weak “treatment”: a limited and passive form of participation

  • Weak methods: correlational, covariance adjustment approaches (ours too)

  • Skepticism: from felons and academics


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“a stretch” for some felons

  • Andrew: To me that would be a stretch…I think that people who are more likely to vote are, you know, just at different points in their life, and I just think that the people [who] are more likely to commit crimes aren’t gonna either commit those crimes or not commit those crimes because they have the ability to, to vote. I just don’t think that voting’s gonna be a priority to them (probationer in 20s)

  • Larry: I don’t think that would have anything to do with it [committing future crime], the right to vote…. I mean I had the right to vote before I came to prison, but I still let my crime happen…I don’t see voting as having an effect on criminal behavior (prisoner in 30s)


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survey evidence (YDS)(with Manza; Columbia Human Rights Law Review 2004b)


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does the association hold net of arrest history?


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strategy

  • Match MN voting and crime records

    • 1990 releasees through 2004, plus record search

  • Univariate

    • What percentage voted? [minimum of 17-20%]

  • Bivariate

    • Compare voters and non-voters with non-parametric survival and hazard plots [significant difference, ~7%]

  • Multivariate

    • Create time-varying voting variable

    • Run basic recidivism model with voting [big difference]


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summary

  • Civic reintegration through voting?

    • Maybe, if voting taps desire to participate as a law-abiding stakeholder in a larger society

    • Strong relationship: hazard rate of recidivism is 77% lower for voters in the previous biennial election than for non-voters, net of controls.

      • age, marriage, race, gender, offense, sentence length, property ownership

  • Practicing citizenship by voting may help reinforce identity as a law-abiding citizen

    • Reenfranchisement and public safety

    • Omitted variables and Oregon project


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IV. does the public support felon voting bans?(Public Opinion Quarterly 2004, with Manza and Clem Brooks)

  • Harris Poll

    • Monthly omnibus telephone survey, July 18-22, 2002

    • National sample of 1000 adults

  • Survey experiments

    • Randomly split sample into fourths and varied question wording and offense

    • Tested for “non-attitudes”


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support for enfranchisement


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framing effects


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provisional answers to 5 questions

I. Impact?

  • Yes, but only in close Republican victories in states with very strict laws

  • Parties can ignore preferences of 5 million poor

    II. Origins?

  • Old idea, tied to racial conflict in the U.S.

    III. Do felons care about voting?

  • Yes, but other rights are more salient

    IV. Is voting linked to crime?

  • Yes, it is correlated

  • We think it taps civic reintegration

  • It may reinforce an identity as a law abiding citizen

    V. Does the public support strict felon voting laws?

  • No. Most only want inmates banned


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citizens and felons


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supplemental slides


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Minnesota turnout in yds


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poll wording

  • There has been some discussion recently about the right to vote in this country. Some feel that people convicted of a crime who are in prison should have the right to vote. What about you? Do you think people in prison should have the right to vote?

    • … who have been released from prison on parole and are living in the community…

    • who are sentenced to probation (but not prison) and are living in the community …(Or haven’t you thought much about this?)

  • Now how about people convicted of a crime who have served their entire sentence, and are now living in the community. Do you think they should have the right to vote?

    • “ … convicted of the illegal trading of stocks … ”

    • “ … convicted of a violent crime … ”

    • “ … convicted of a sex offense … ”


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the Voting Rights of Prisoners

  • No Restrictions: Bosnia, Canada, Croatia, Czech Republic, Denmark, Finland, Iceland, Ireland, Israel, Latvia, Lithuania, Macedonia, Poland, Serbia, Slovenia, Spain, South Africa, Sweden, Switzerland, Ukraine

  • Selective Restrictions: Australia, Austria, Belgium, France, Germany, Greece, Italy, Malta, New Zealand, Norway, San Marino

  • Complete Ban on Inmate Voting: Argentina, Brazil, Bulgaria, Estonia, Hungary, India, Luxembourg, Portugal, Romania, Russia, United Kingdom

  • Post-Release Restrictions: Armenia, Belgium (sentences over seven years), Chile, Finland (for up to seven years after imprisonment), Germany (court-imposed only in rare cases)


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