“Civil Death”: Florida’s Criminal Disenfranchisement

imagesThe Honorable Rick Scott

Tallahassee, Florida

Dear Governor Scott:

Belated congratulations on your reelection in November. I don’t write to every governor, but as a non-resident, property-tax-payer who spends about half the year in the Sunshine State (summers too – I’m not just a snowbird!), I feel our connection. And I wanted to make sure you’re aware of my blog, because one of my regular themes is the importance of voting, so that all Floridians – and Americans – can say their government is legitimate, even if their candidates lose. Unless we vote, our democracy withers.

As I’m sure you know, you won by a margin of 66,000 votes (out of 5.6 million cast), with 43% turnout of eligible Floridians. According to the state elections department, half of the 11.9 million people registered to vote did so. I write to you about the 1,541,000 citizens who have lost the right to vote because of Florida’s restrictions on voting by felons and ex-felons. You’re at least vaguely familiar with the issue, since in your first term you reinstated – after a half-hour public hearing with no advance notice of the changes – 1975 rules that require even non-violent felons to wait five years after they have completed their sentences to apply, through a cumbersome process, for the right to vote.

The changes your clemency board made undid reforms, under fellow Republican Governors Jeb Bush in 2004 and Charlie Crist in 2007, that automatically restored voting rights to most felons upon release from prison. According to one newspaper, you told one of your clemency board members that your change “seemed reasonable” but offered no further insight into your thinking.

Allow me, then, to place your reasonableness in a larger context.[i]

America’s disenfranchisement laws date to the colonial period and have their precedents in the Enlightenment and Ancient Greece. They emerged from twin strains of thought. The liberal strain, reflecting John Locke, argued that citizens’ relationship with the state was self-interested and contractual – that they agreed to rules in exchange for increased security, and that by violating the rules, criminals lost the right to participate in their formation.

The republican strain, common in early New England, held that the “body politic” was not merely an agreement among self-interested persons but an actual body dependent upon “virtue.” Disenfranchising criminals was a matter of protecting the body from corruption. And so loss of the right to vote was a public aspect of conviction upon which courts passed specific sentence.

Both of these strains emerged when voting was severely restricted – to white, male, property owners. Over time, of course, we have adopted a much broader understanding of citizenship and voting rights. The Constitution nowhere mentions a citizen’s right to vote until the Fourteenth Amendment, and today Americans accept that it is the cardinal indication of democracy (even though roughly half of us bother to exercise the franchise).

With the growth of the country from a group of villages where the privilege of voting was concomitant with civic virtue and status, to a nation of 300 million strangers under relatively distant governments, what is the contemporary rationale for disenfranchising citizens? Criminal punishment is traditionally tied to one or more of four aims: retribution, incapacitation, deterrence, or rehabilitation. Disenfranchisement is retributive – it’s a denial of a right. But it’s also a “collateral” sentence, not handed down in court but automatic under a related code section. It is incapacitating only if the criminal had engaged in election fraud (locking up someone for larceny will incapacitate the opportunity to steal). It’s unlikely to be deterrent – who thinks about the right to vote while committing crime (unless, say, they’re rioting while officials are counting chads)? And it’s contrary to rehabilitation: studies have shown reduced recidivism for those whose voting rights are restored. So what is the purpose?

Well, Governor, it’s no accident that disenfranchisement became all the rage around the time Congress passed the Fourteenth (equal protection) and Fifteenth (voting rights for blacks) amendments. It was in the wake of Reconstruction that Florida rewrote its constitution to deny suffrage to felons – part of an effort across the former Confederacy to remove former slaves from the voter rolls. In fact, a number of states rewrote their constitutions to tie voting rights to crimes more commonly committed by Negroes. Thus conviction for theft and wife-beating resulted in disenfranchisement, while robbery and murder did not.

The state’s 1868 disenfranchisement provision was retained when in 1968, again amid a period of racial upheaval, Florida revised its constitution. What has expanded, however, is the list of felonies, especially since the launch of the drug war, which has exacerbated the disparate effect of disenfranchisement on white and black Americans. And in this category, too, Florida “leads” the nation. Florida’s total inmate population is 167,000 (all figures from The Sentencing Project). But as I noted above, 1.5 million Floridians – 10% of the voting population – are disenfranchised. Of that number, 520,000 are African-American – 23% of the state’s black population. Nationwide, 5.85 million Americans are disenfranchised, 2.23 million of them African-American.

It’s unlikely coincidental that the two states that have no provision for disenfranchisement of felons are Vermont and Maine – two of our whitest enclaves.

long-lines-at-pollsIn the context of minority voting, I remind you of the letter you got from Attorney General Holder last summer, taking you to task for the myriad ways Florida suppresses voting: reduced voting hours and early voting, reports of 200,000 discouraged voters in 2012, the purging of voting rolls – as well as Florida’s place topping the 11 states that indefinitely disenfranchise citizens. The A.G. wrote: “Generations of Americans took extraordinary risks and willingly confronted hatred and violence – including in your home state – to ensure that all Americans would have the chance to participate in the work of their government.”

So often in America, we return to what makes us unique: the mix of black and white that’s produced slavery, civil war, lynchings, jazz, rock ’n roll, our only decent cooking, New Orleans, and just about everything else culturally noteworthy.

My state of residency, Virginia, used to disenfranchise almost as zealously as Florida. In 2013, then-Governor Bob McDonnell under his own authority restored voting rights to ex-felons through a state administrative action that would allow them to register. Fortuitously, that may help your former peer, who is appealing his conviction for felony bribery.

You might want to consider that, Governor, in case after your service to the people of Florida you return to your former life as an executive of a Medicare contractor.


Bennett Minton

[i] I am inspired by Alec C. Ewald of the University of Vermont: “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, (March 24, 2012). Wisconsin Law Review, pp. 1045-1132, 2002. Available at SSRN: http://ssrn.com/abstract=2028335

This entry was posted in civil rights, U.S. Constitution, Voting and tagged , , , , , . Bookmark the permalink.