The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.
Sir Winston Churchill
‘Report of an Inquiry into Prison Disturbance’
HMSO, Command 1456 , London Home Office 1910
People of color receive disparate treatment in the criminal justice system throughout the nation and African-Americans and Hispanics constitute a disproportionate percentage of incarcerated populations in Wisconsin.
Wisconsin Governor Doyle
Racial disparities permeate the entire criminal justice continuum, in the number of arrests, cases charged, sentences and probation and parole revocations.
Wisconsin Office of Justice Assistance
President Lyndon Johnson formed an 11-member National Advisory Commission on Civil Disorders in July 1967 to explain the riots that plagued cities each summer since 1964 and to provide recommendations for the future. The Commission’s 1968 report, informally known as the Kerner Report, concluded that the nation was “moving toward two societies, one black, one white—separate and unequal.” Report of the National Advisory Commission on Civil Disorders, Summary of Report, p. 1 (1968). The Commission warned that if changes were not made America would be become more polarized resulting in the “destruction of basic democratic values.” Id. Looking to the causes of those riots, it was found that “the rioters appeared to be seeking [ ] fuller participation in the social order . . . . [r]ather than rejecting the American system, they were anxious to obtain a place for themselves in it.” Id. at 7. Specifically, it found that “[w]hite racism is essentially responsible for the explosive mixture which has been accumulating in our cities,” id. p. 10, and that this caused a pervasive feeling of powerlessness among Negroes that there is no effective alternative to violence as a means of achieving redress of grievances which include: police practices, unemployment and underemployment, inadequate housing, inadequate educational opportunities, poor recreational facilities, and ineffective grievance mechanisms. Id at 11.
Today, America is two societies: one incarcerated and one not. America is two societies which are separate and unequal, especially regarding the civil right to vote. Nationally, statistics demonstrate African American men are much more likely to be incarcerated than White men, and that a very high proportion of Black men spend some time in prison. Sadly, researchers have determined that one third to two thirds of the 100,000 poorest black male three-year olds of today will eventually end up in prison. Marc Mauer and Tracy Huling, “Young Black Americans and the Criminal Justice System: Five Years,” The Sentencing Project (October 1995), http://www.sentencingproject.org/doc/publications/rd_youngblack_5yrslater.pdf See also, Thomas Bonczar and Allen Beck, ‘Lifetime Likelihood of Going to State or Federal Prison’, Bureau of Justice Statistics Special Report, Washington, BJS, March 1997, p. 1; http://bjs.ojp.usdoj.gov/content/pub/pdf/Llgsfp.pdf , for a state-by-state analysis, see Marc Mauer, ‘Racial Disparities in Prison Getting Worse in the 1990s’, Overcrowded Times, vol. 8, no. 1, February 1997, pp. 9–13. It must be recalled that if you have been convicted of a felony and are serving that felony sentence, you cannot vote. This means that a very high proportion of Black men will spend some time in or out of prison with no way to protest political grievances by voting. This creates a feeling of hopelessness mentioned in the Kerner Report.
Michelle Alexander explains the consequences of this disproportionate minority confinement:
In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color “criminals” and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness p.2 (2010)
Ms. Alexander further explained that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.” Id at 4. “As is well known, disproportionately many African Americans pass through the justice system, and consequently the impact of disqualification for felony conviction is especially dramatic for the black electorate. Nearly 7 percent of black Americans cannot participate in the electoral process because of felony convictions. Because 95 percent of felons are male, the felony disfranchisement rate for black men is almost double. All but one state, Hawaii, records felony disfranchisement rates for blacks that are larger than disfranchisement rates for whites and others, in most cases several times larger.” Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 1-2, http://www.usccr.gov/pubs/EX-FelonVRFL.pdf
There are important distinctions between the disenfranchisement laws of early America and disenfranchisement as practiced in modern America. Modern disenfranchisement laws are automatic, invisible in the criminal justice process, considered “collateral” rather than explicitly punitive, and applied to broad categories of crimes with little or no common character – characteristics not in common with early disenfranchisement laws. “Most state constitutions explicitly gave their legislatures the power to pass laws disenfranchising criminals. Early U.S. disenfranchisement laws drew upon European models and were generally limited to a few specific offenses. Over time, states expanded the scope of such laws to include all felonies, often citing a rationale to “preserve the purity of the ballot box”. Many states enacted felon disenfranchisement provisions in the aftermath of the Civil War. Several scholars have traced the enhanced impact of disenfranchisement laws in certain states to a mid-nineteenth century effort to bar newly-freed African Americans from participating in local elections. See, e.g. Bailey Figler, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. ANN. SURV. AM. L. 723, 732 (2006); Daniel S. Goldman, The Modern- Day Literacy Test?: Felon Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611, 626 (2004); Marc Mauer, Felon Disenfranchisement: A Policy Whose Time Has Passed? (2004), available at http://www.sentencingproject.org/Admin/Documents/publications/fd_fdpolicywhosetime.pdf; Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. 777, 781 (2002)
Such laws diluted the voting strength of newly enfranchised racial minority groups, particularly in the Deep South but in the North as well.” Behrens, Uggen, Manza, Ballot Manipulation and the “Menance of Negro domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AMER. J.OF SOCIOLOGY 559, 563 (Nov. 2003). See also, Hunter v. Underwood, 471 U.S. 222, 229 (1985) (describing the “movement that swept the post-Reconstruction South to disenfranchise blacks”); Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (“[Felon disenfranchisement statutes were] enacted in an era when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were committed primarily by blacks.”); Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896) (tracing devices, including criminal disenfranchisement, added to the 1890 Mississippi Constitution to “obstruct the exercise of the franchise by the negro race”); see also Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 537-42 (1993). These laws, if not explicit in their racial goals, often singled out crimes for which blacks were more likely to be convicted than whites, with little regard to the severity of the crime or its possible relation to the franchise. Manza and Uggen, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 43, 55 (2006); Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1088-89; Florida Advisory Committee to the United States Commission on Civil Rights Ex-felon voting rights in Florida, (August 2008), p. 4 (“Nevertheless, despite what appeared to be a clear prohibition on race discrimination in voting, in the ensuing decades most former Confederate states adopted barriers that although neutral on the surface served to prevent many blacks from voting.”) Critically, scholars have found that “the racial composition of state prisons is firmly associated with the adoption of felon disenfranchisement laws.” Figler, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. ANN. SURV. AM. L. 723, 729-31 (2006).
In America today disenfranchisement laws represent a “crazy quilt of disqualifications and restoration procedures” allowing for disagreement in a single jurisdiction of how the law should be interpreted and applied. Susan M. Kuzma, U.S. Dep’t of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-by-State Survey, at Forward, p.i, and Introduction, p. 1 (1996). This “crazy quilt of disqualifications” has severe implications. An ex-felon may vote in one state, but his former cellmate may not in a neighboring state; an ex-convict who moves across state lines may gain or lose the right to vote. The federal voting rights of former felons, therefore, depends “solely on where a person lives.” H.R. 906: Civic Participation and Rehabilitation Act of 1999, 106th Cong. Section 2 (1999). Many ex-felons therefore are effectively forced to choose between which constitutional right they will waive: the right to interstate travel or the right to vote.
However, it must be realized that it is clear that racial disparities in the criminal system are most severe at the point of arrest (where African Americans are arrested at a rate twice their share of the general population) and the point of incarceration (where African Americans are 11% more likely to be incarcerated). Conversely, African Americans are underrepresented at the stage of probation (0.84), which is not surprising since probation sentences reflect those persons not sentenced to incarceration.” Reducing Racial Disparity in the Criminal Justice System: A Manuel For Practitioners and Policymakers, p. 22, The Sentencing Project (2008), http://www.sentencingproject.org/doc/publications/rd_reducingracialdisparity.pdf. African Americans are therefore set up by the criminal system to be disproportionately disenfranchised. See, Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) 107-09 (the racial difference among African-Americans and whites in prison is overwhelmingly wider than arrest rates suggest it should be absent racial bias. There are seven African-American to each white in prison…Most studies reveal what most police officers will casually admit: that race is used as a factor when the police decide to follow, detain, search, or arrest…To justify the use of race in forming this suspicion, these officers might point to racial disparities in arrest patterns: if minorities get arrested more often, they argue, then minorities must be committing more crime. This is a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities, thereby creating the arrest statistics needed to justify the racial stereotype.)
To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. Demleitner, Continuing Payment on One’s Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, 84 MINN. L. REV. 753 (2000) (In Germany, deprivation of voting rights is limited to serious, legislatively enumerated offenses, must be assessed directly by the sentencing judge at the time of sentencing, and can be imposed only for a limited and relatively short period of time.) In Germany, a judge may impose disenfranchisement for certain offenses, such as treason, but only for a maximum of five years. Demleitner, supra. France excludes from suffrage only those convicted of election offenses and abuse of public power. Ireland and Spain both allow prisoners to vote, and in Australia a mobile polling staff visits prisons so that inmates may vote (Australian Electoral Commission 2001). In 1999, South Africa’s highest court ruled that prison inmates had the right to vote. Behrens, Uggen, Manza, Ballot Manipulation, 109 AMER. J.OF SOCIOLOGY at 562 n.3.
Despite the Fifteenth Amendment’s passage, many States devised numerous methods for denying the franchise to racial minorities. “These included grandfather clauses, property qualifications, ‘good character’ tests,” white primaries, literacy tests, racial gerrymanders, and interpretation requirements. South Carolina v. Katzenbach, 383 U.S. 301, 311 (1966). As a result, African- American voting rates in some States dropped precipitously. See, e.g., Louisiana v. United States, 380 U.S. 145, 147-149 (1965) (noting that beginning with the adoption of the Louisiana Constitution of 1898, the State implemented a policy of denying African-American citizens the right to vote such that from 1898 to 1944, the percentage of registered African- American voters declined from 44% to 0.2%); United States v. Mississippi, 380 U.S. 128, 144 (1965). In the tradition of Jefferson Davis, twentieth-century states’ rightists wax eloquent about the dangers of a national government run rampant, but regularly deploy the rhetoric of states’ rights to defend states’ wrongs. Sadly, in regards to voting rights, “states’ rights” is often a code word for racial injustice and disregard for the rights of local minorities See, e.g., Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1425-29, 1488 n.252 (1987)–code words for a world view far closer to Jefferson Davis’ than James Madison’s words in the his Virginia Resolutions of 1798, and his Report of 1800.
The meaning of these statistics in terms of felon disenfranchisement is clear. The unwarranted racial disparities in the criminal justice system in the United States (in terms of policing, arrest, sentencing, and incarceration) result in felony disenfranchisement laws having a disproportionate impact on African American and Hispanic minority groups. In 2007, thirty-eight percent of the nation’s 1.5 million prison inmates were black and twenty-one percent were Hispanic, The Sentencing Project, Facts About Prisons and Prisoners (2009) (citing Bureau of Justice Statistics), available at http://www.sentencingproject.org/doc/publications/inc_factsaboutprisons.pdf. despite the fact that these groups only represent twelve and fifteen percent of the general population, respectively. U.S. Census Bureau, Population Estimates Program (2007). “The impact of the separate provisions for felony disqualification can be seen in estimates of the effect of recission. Repeal of permanent disfranchisement would reduce the number excluded from the electorate on account of felony convictions by about a third. Repeal of disfranchisement during probation and parole would have somewhat larger effect, mostly because it is current policy in more and larger states. Repeal of both provisions would benefit white and other felons a little more than blacks. Overall, felony disfranchisement rates would fall to just 0.6 percent, about 1.2 million people, were disqualifications imposed only upon felons in current custody. Felony disfranchisement rates would remain at 2.5 percent for blacks, well above the felony disqualification rate for whites and others under current law, 1.5 percent.” John Mark Hansen, Task Force Report on the Federal Election System: Disfranchisement of Felons (July 2001), Chap. 8, p. 2
“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.” Wesberry v. Sanders 376 U.S. 1, 17–18 (1964). As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.” Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999) To ensure that our citizens enjoy this precious right, courts must refuse to enforce disenfranchisement laws which have both discriminatory origins and effects.