Felon Disenfranchisement: Voting and Racial Justice

Felon Disenfranchisement (when convicted felons are denied the right to vote) is unconstitutional, a violation of human rights, and disproportionately impacts Black people. Felon disenfranchisement laws are devolved to state discretion: ranging from (1) no restriction, (2) only inmates are restricted, (3) inmates and parolees are restricted, inmates, parolees and probationers are restricted, and (4 & 5) all inmates, parolees, probationers, and some ex-felons or all ex-felons are restricted from voting (The Sentencing Project, 2012). According to The Sentencing Project’s report (2012) on felon disenfranchisement, the data for 2010 shows: “7.66 % of African Americans in the United States could not vote due to a felony conviction,” while in Florida, “23.32 % of African Americans were disenfranchised,” which was the highest among the states. Using the 2010 data from The Sentencing Project (2012), it is shown that, nationally, African Americans are 3.1 times more likely to be impacted by felon disenfranchisement than the nation’s voting age population. These statistics only consider the data from the year 2010, but does not account for recidivism rates nor does it consider if convicted felons reregister to vote during the community reentry process.


McKittrick (2011) analyzes black positionality, defined by the intersection of: Blackness, place, and violence through urbicide (the deterioration and geographic marginalization of black communities) and the prison industrial system or the new plantation. Mass incarceration and its link to slavery is not a new idea; this is presented quite grotesquely by David Oshinsky (1997) in his book Worse Than Slavery and told through the lens of colorblindness in Michelle Alexander’s The New Jim Crow (2012). Because of the abolishment of slavery and the ratification of the 13th amendment of the U.S. Constitution in 1865, slavery transformed into the legal criminalization of black people (Alexander, 2012; Oshinsky, 1997).


By criminalizing the black person, a stigma-related limiting of resources through segregation and redlining contributed to urbicide and mass incarceration. By labeling this racial group as the without (McKittrick, 2011), their autonomy and lives are threatened, their identities are criminalized, and their rights are violated. The “brutalities of isolation and marginalization” (McKittrick, 2011, p. 955) of the black person have been disavowed from history, the associated trauma has been masked, and the illusion of equal resource distribution presented by black exceptionalism (Alexander, 2012) threatens the advancement of the African Diaspora by creating the mere illusion of equal opportunity within the racially discriminatory legal system and systemically bias institutions of the United States. This illusion is dangerous, because it takes away resources that are still necessary to provide equitable opportunity for oppressed and marginalized groups. Access to resources and inclusion levels or an individual sense of belonging is interconnected. This is where social movements become important.

Rojas (2010) discusses how social movements lead to academic reform, like the development of African and African American studies in American education. Rojas (2010) defines the eventual development of African and African American studies as a means to “meaningfully accommodate Black culture” (p. 28), but it does much more than this and has the potential to ameliorate the neuroscientific symptoms of trauma and subconscious bias. The utility of the African Diaspora should bring substantial meaning to the lives of those within the Diaspora. The social utility of the Diaspora gives a voice to a group that has been historically silenced through oppression and marginalization. This marginalization compromised the sociospatiality reality, placelessness, and geographic displacement of Black people, and is only now being reclaimed by Americans of African descent through the Black Lives Matter Movement. The Black Lives Matter Movement is challenging the American disavowal of Blackness, unmasking black trauma, and demanding the recognition of the systemic bias within American institutions.


Legal Framework


Felon disenfranchisement is unconstitutional as it violates (1) the 8th Amendment of cruel and unusual punishment, (2) the 14th Amendment’s equal protection clause, (3) the 15th Amendment by disproportionately denying Black people the right to vote, and (4) the 24th Amendment by denying felons the right to vote based on failure to pay taxes (ProCon, 2017). According to the rights set forth in the UN General Assembly’s Universal Declaration of Human Rights (1948), felon disenfranchisement violates: (1) Article 1, as it does not allow for free and equal realization of human dignity and rights, (2) Article 2, as it discriminates based on race, (3) Article 3, because it is a violation of liberty, (4) Article 5, as it is a degrading form of punishment, (5) Article 7, because it is a violation of equal protection of rights, (6) Article 9, as it serves as a form of political and communal exile, and (7) Article 21, because it is a violation of the right to equal suffrage (Scott, 2006). Felon disenfranchisement is in violation of all articles of the Universal Declaration of Human Rights, because they are indivisible and a violation of one right is a violation of all rights.


Universal Periodic Review (2010)


Two relevant topics related to felon disenfranchisement in the 2010 Universal Periodic Review (UPR) were equality and discrimination, as well as administration of justice are topics of interest. Specifically, racial discrimination in anti-drug laws and the administrative justice for children sentenced to life without possibility of parole are examined. The UPR (2010) states “drug arrest rates for African American adults were 2.8 to 5.5 times as high as those of whites in every year from 1980 through 2007,” explaining, “53.5 percent of all persons who enter prison because of a drug conviction” are African American, and are “10.1 times more likely than whites to enter prison for drug offenses,” despite the estimation that “blacks engage in drug offenses at roughly the same rate as whites.” The UPR (2010) also mentions, “black youth are serving [life sentence without possibility of parole] at a per capita rate 10 times higher than white youth,” finding that, “in 10 US states, black youth who are arrested for murder are significantly more likely to be sentenced to [life without possibility of parole] than are white youth arrested for the same crime,” and that, “in California, black youth who are arrested for murder are almost six times more likely to ultimately receive a sentence of [life without possibility of parole] than are white youth arrested for murder.” These data exemplify the racial disparities, the social injustice, and the systemic bias Black Americans are currently facing.


Racial Discrimination in Anti-Drug Laws.


The UPR (2010) identify two agreements in which the US is party to, which the discriminatory anti-drug laws violate: (1) Article 2 of the International Convention on the Elimination of all Forms of Racial Discrimination (1965), which condemns all forms of racial discrimination and calls for the “review [of] governmental, national and local policies… to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists” (Scott, 2006, p. 361), and (2) Article 26 of the International Covenant on Civil and Political Rights (1966), which entitles all people to “equal protection before the law… without any discrimination,” specifying, “on any ground […] such as race” (Scott, 2006, p. 379). The UPR (2010) recommends monitoring “any disproportionate impact of drug law enforcement on black communities,” to identify and eliminate negative impact, as well as prioritizing “community based sanctions and other alternatives to incarceration for low-level drug offenders.” Investing in treating substance abuse and outreach emphasizing substance abuse prevention, an increase of investing in community education, health, economic and other social programs addressing drug use and offenses are also suggested in the UPR (2010).


Children Serving Life without Parole.


The UPR (2010) recognized that the US is: “the only country in the world that sentences persons under the age of 18 to life in prison without the possibility of parole or release [LWOP],” and Blacks were disproportionately sentenced. According to the UPR (2010) and Scott (2006), this violated: (1) Article 37 of the Convention on the Rights of the Child (1989), which prohibits LWOP sentences for children, (2) Articles 10.3 and 14.4 of the International Covenant on Civil and Political Rights (1966), which calls for age-appropriate treatment and an emphasis and promotion on rehabilitation of juvenile offenders, respectively, and (3) Article 5(a) of the International Convention on the Elimination of all Forms of Racial Discrimination (1965), which calls for the elimination of racial discrimination in administrative justice. The UPR (2010) recommended for the United States to discontinue the use of life sentences without parole for all persons below the age of 18, which the US Supreme Court affirmed in their ruling of Montgomery v. Louisiana, 577 U.S. (2016) that LWOP was an unconstitutional sentence for juveniles. The UPR (2010) also recommended that the U.S. ratify the Convention on the Rights of the Child (1989), which the U.S. has not yet done.


U.S. Compliance with International Human Rights Obligations


Aside from the US Supreme Court ruling of Montgomery v. Louisiana, 577 U.S. (2016), the United States has not complied with the international human rights obligations mentioned in the UPR (2010). The U.S. Supreme Court ruling called for remedial parole hearings rather than resentencing of juveniles sentenced to LWOP, which was devolved to the state authorities, much like how desegregation plans after Brown v. Board of Education, 347 U.S. 483 (1954) were devolved to state’s responsibility and implementation after it was ruled unconstitutional (Saltzman, Furman & Ohman, 2016).


Human rights continue to be violated by racially discriminatory anti-drug laws, coupled with the lack of criminal justice reform. According to the Sentencing Project (2017): “half of the people in federal prison are serving time for a drug offense,” and “the number of people in state prisons for drug offenses today is 10 times greater than in 1980.” An emphasis on alternative sentencing and restorative justice is a possible remedy, for which social workers need to advocate.


Plan to Address Felon Disenfranchisement


Because felon disenfranchisement violates human and constitutional rights, legal action through judicial review and criminal justice reform is necessary. Unmasking the trauma associated with the criminalization and commodification of Black people from the legacy of slavery, redlining, urbicide, and mass incarceration becomes the next step to address the fear resulting from the impact of the media on public perception and the installation of mass fear on the marco level and amygdala activation on the micro-neuroscientific level. The final step consists of educational reform at the federal level to remedy the American disavowal of Blackness from Paul Gilroy’s (1993) definition of modernity. Maschi (2006) discusses the moderating role of social support in violent delinquent behavior among male juveniles, which supports the mirroring of neural pathways promoted in supportive relationship and its cultivation of empathy in high-risk populations.


Legal Action


The legal injustice based on racial and socioeconomic disparities that permeate the theme of felon disenfranchisement must be judicially reviewed at both the state and federal levels. The criminal justice system needs to be reformed and reexamined. Felon disenfranchisement is unconstitutional and upon critical U.S. Supreme Court review, remedial parole and probation hearings, as well as resentencing and possible expungement of records should be supported. However, until public perception of racial injustice and until the American disavowal of Black trauma becomes unmasked, successful federal legal action would be devolved to unreliable and racially bias states for remedial procedures. Immediate remedies could be an embrace of restorative justice like alternative sentencing and restorative justice practices like rehabilitation programs or community service, perhaps involvement in civic engagement campaigns within the community.


Unmasking Trauma


Grassroots social campaign like Black Lives Matter must continue to unmask Black trauma. As Paul Dunbar’s (2017) We Wear the Mask implies, since the time of slavery, Black Americans have been wearing a mask to hide their pain from their white enslavers. Joy Degruy (2005) entitles this trauma as Posttraumatic Slave Syndrome, which has a neurobiological basis. Ruttle, Shirtcliff, Serbin, Fisher, Stack & Schwartzman (2011) describe the process where high cortisol levels were observed in individuals exposed to trauma in a recent time-period, and the lower cortisol levels that lead to externalizing problem behaviors in youth who were exposed to recurring trauma over an extended period of time. When examining the impact of institutionalized racial discrimination in mass incarceration and urbicide, the prolonged stress would result in lower cortisol levels, which is a symptom of Posttraumatic Stress Disorder (Herman, 1992). Urbicide in black communities may also hinder brain development through affect dysregulation and result in lower levels of job and academic achievement (Farrah, Noble, & Hurt, 2006; Hair, Hanson, Wolfe & Pollak, 2015) contributing to a racialized economic apartheid.


Public Perception: Racism and Amygdala Activation


Trauma impacts cortisol levels and leads to affect dysregulation and the feeling of fear (Shapiro & Appelgate, 2000). This feeling of fear is the activation of the amygdala in the brain, which Hayasaki (2016, August 25) says may lead to violence in impoverished communities, but may also be responsible for subconscious bias in the brain (Phelps, O’Connor, Cunningham, Funayama, Gatenby, Gore & Ganaji, 2000; Gowain, 2012, August 20). Terbeck, Kahane, McTavish, Savulescu, Cowen & Hewstone (2012) used propranolol, a drug used to treat Posttraumatic Stress Disorder to reduce this subconscious racial bias. There may be underlying trauma that is inflicted on all of society by the media’s sensationalized reinforcement of Black criminalization, which becomes internalized as a trauma. Education is a possible avenue to explore to counteract the media’s criminalization of Black Americans and the racially based discrimination in law, which could change public perception of race and result in the realization of equitable social justice in America.


Educational Reform


Woodson (1990) recognized the American disavowal of African and African American Studies in the education system. He identified this disavowal as the perversion of Black identity and the groundwork for the criminalization of Black Americans. African history and culture is very rich and was the springboard to the university system, many technical advances, and respected the rights of women before may other societies (Bohannan & Curtis, 1995; Falola, 2000; Martin & O’Meara, 1995). Yet, it is omitted from history textbooks. Education can serve as a vehicle to redefining Black criminalized identity, especially with the concept of Black American icons like DuBois, Oprah, Angelou, King Jr., Malcolm X and political prisoners like Angela Davis who teach courage and resilience as well as critical thought.


Expanding Social Capital of the African Diaspora


Civic engagement will expand the social capital of people of the African Diaspora (Gordon & Anderson, 1999). To extend this expansive sense of civic engagement and social capital, people of African descent can utilize dual citizenship programs. The United Nations’ non-governmental organization, the International Multiracial Shared Cultural Organization (IMSCO), offers a dual citizenship program to expand African American social capital. IMSCO’s (2017) intent is for the dual citizenship program to “enable African people as well as States to rewrite Bilateral Trade agreements and end economic apartheid.” African Bilateral Trade agreements have been influenced by colonialism, and many Africans are exploited by the deals and their inherited wealth and land have been stolen.



Conclusion


The unconstitutionality of felon disenfranchisement needs to be addressed in a federal restoration of justice and the realization of the human and constitutional rights of convicted felons. Because felon disenfranchisement disproportionately affects Black people, the UPR (2010) called for reform in anti-drug laws, and for U.S. compliance, just as the U.S. Supreme Court successfully did for juvenile felons serving LWOP. The decriminalization of Black people will come from legal action, grassroots social campaigns, and educational reform to address amygdala activation and its impact on subconscious bias and racial discrimination. The utility of the African Diaspora needs to be fully utilized to increase and expand the social capital among African Americans in America and within Africa through dual citizenship programs. The profession of social work education must become more expansive and curriculum must include the study of law, neurosociology, and trauma recovery to better implement the best practices. Social workers must lead the way in advocating for the legal and social liberation of the voices of those counternarratives who have been silenced by systemic oppression to unmask the cyclical trauma associated with racial discrimination and disenfranchisement.


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