Book Notes

Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States. By Human Rights Watch and The Sentencing Project. Washington, D.C., and New York: Human Rights Watch and the Sentencing Project, October 1998. Pp. 25, $5.00, paper.

The recent Human Rights Watch/Sentencing Project Report on prisoner disenfranchisement in the United States implicitly raises the troubling issue of exactly what human rights scholarship should be studying. Should one worry about the traditional problems of free societies—speech rights, voting, and the like, or on the more pragmatic problems of making governments more responsible to the people? This Report highlights the fact that human rights scholars need to look beyond the standard problems of democracy, and into the real problems of people seeking to influence power. It also presents a compelling, if implicit, case that those standard democratic rights become important when denied to large numbers of well-defined interest groups.

Most of the Report deals with historical and statistical information on the causes and extent of prisoner disenfranchisement through the loss of voting rights. The actual figures are depressing: 3.9 million disenfranchised persons, 1.4 million of whom are permanently disenfranchised. Ours is a system in which a citizen can commit a relatively minor felony at a young age and be forever excluded from the electoral process. Even civil disobedience—a political act—could lead to the revocation of the political rights for the “offender.”

Even more severe than the impact on the population as a whole, however, is the impact of prisoner disenfranchisement on the African American community. Of the disenfranchised, 1.4 million are African American males. This represents thirteen percent of the male African American population in the United States, disenfranchised as a direct consequence of inequitable criminal policies. The war on drugs breaks up African American and other poor families, perpetuating the very poverty which creates the hopelessness and despair which leads to drug use and drug convictions. One collateral harm inflicted in this process is the loss of the right to vote. The Human Rights Watch Report deals with that limited area and fills out an area of study and advocacy missing from the common discourse.

This same poverty also reduces the political influence of the African American community in other ways, outside the scope of the Report. Because of this poverty, African American communities are not recognized as a significant source of campaign funding, as a source or target for political advertisement. The financial effects of imprisonment on the group as a

whole are quite probably more disabling than the mere loss of the right to vote. The financial effect is, of course, exacerbated when most convicts are young males, traditionally the most employable people in any group.

This highlights what is probably the core flaw in the Report—its failure to recognize that voting rights are largely symbolic, and part of a much broader and more concrete set of disenfranchisements stemming from imprisonment. The report demonstrates its focus on symbolism with one poignant quotation from the cover of the Report: “Without a vote, without a voice, I am a ghost inhabiting a citizen’s space . . . . I want to walk calmly into a polling place with other citizens, to carry my placid ballot into the booth, check off my choices, then drop my conscience in the common box.” This statement does not mention power, or pluralism, or individual or group issues to be vindicated through the electoral process—merely a symbolic affirmation of the rights of a citizen. Although symbolism is important, perhaps human rights scholars should focus on the real inequalities of society first.

Voting rights are but one measure of a group’s participation in the political process. Financial resources have a profound impact on political power, as those in power respond to financial pressure. Communities with less financial power are, in some ways, more crippled than those without the right to vote because on many issues, the votes of a group of people may not make a difference, while the financial contributions of those people would. The Report does not address this disempowering effect of incarceration on minority communities.

On the other hand, the Report does make a convincing case that the deprivation of voting rights has a significant enough effect on African American representation in the polls to distort the political system. Thirteen percent of a population with defined interests, with voters reaching seven figures and concentrated in specific areas in numbers large enough to affect elections, has a great impact. This is especially the case because disenfranchisement is strongest in areas—Alabama, for example—where minority rights have, to say the least, not always been a priority of those in power. Prisoner disenfranchisement shares a history with literacy tests, poll taxes, and grandfather clauses as a method for white racists to solidify their own power. As long as the economic clout of African Americans cannot be improved, the human rights community must examine the last vestiges of Jim Crow to ensure that minorities have improved, if not yet equal, participation in the political process.

On other matters, the Report makes strong arguments that the denial of voting rights contravenes both the U.S. Constitution and principles of international law. These restrictions may violate the Voting Rights Act, or otherwise be forbidden on equal protection grounds. They also quite clearly run afoul of international treaties concerned with racial discrimination and democratic principles. The Report concludes that, despite these overriding

legal principles, legislation would be the best and most probable method to remove these restrictions.[1]

However, it is also important to note that the Report does not contemplate a method of removing these electoral restrictions. The Report suggests that Congress create legislation to eliminate federal disenfranchisement, and recommends similar state legislation in each individual state that denies voting rights to convicts.[2] However, a more practical solution would be for Congress to fulfill its mandate to “guarantee to every State in this Union a Republican form of Government” (Article 4, section 4) by outlawing states’ antidemocratic restrictions on the voting right.[3] Congress could also perform this under their Fourteenth Amendment power, such as by amending the Voting Rights Act.

The Human Rights Watch and Sentencing Project Report teaches us much about the extent and effect of prisoner disenfranchisement. It provides many compelling arguments that these statutes are both illegal and unconscionably discriminatory. However, it teaches us more about our own biases as human rights advocates and scholars, and where we should look to ensure true political equality.

—Paul Gowder

[1]. Human Rights Watch and The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 22 (1998).
[2]. Id. at 46.
[3]. Action under 4:4 has been held not justiciable as a political question as of Luther v. Borden, 48 U.S. 1 (1849) and this holding was unchanged in Baker v. Carr, 369 U.S. 186 (1962).

Copyright © 1999 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 12, Spring 1999