Civil death is a form of punishment that takes away someone’s civil rights, and millions of Americans are victims of civil death – and the number is growing every day.
This is not death from gun violence or a bomb or other physical assault. This is death in the public sphere through denying the right to vote to people who have completed prison sentences for felony crimes. The United Nations Human Rights Committee has charged that these U.S. disenfranchisement policies are discriminatory and violate international law.
The international laws
The Universal Declaration of Human Rights was passed by the United Nations in 1948 and Article 21 affirms, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” Thirty years later, the UN passed the International Covenant on Civil and Political Rights (ICCPR). Article 25 is the international guarantee of voting rights: “Every citizen shall have the right to vote.” The U.S. ratified the ICCPR in 1992. However, there is no constitutional right to vote in two of the world’s oldest democracies, the UK and the US, nor in the world’s largest democracy, India.
Felon disenfranchisement in democracies
Reviewing felon disenfranchisement across 49 democracies shows the following:
- In 21 countries, there are no restrictions: felons can vote in prison.
- In 14 countries, there are selective restrictions: Some felons can vote in prison.
- In 10 countries there is a ban on voting in prison but restoration upon release.
- In four countries there are post-release restrictions – including the U.S. The others are Armenia, Belgium, and Chile. The ban in Belgium is only for those whose sentence was for more than seven years.
Countries that permit persons in prison to vote include the Czech Republic, Denmark, France, Israel, Japan, Kenya, Netherlands, Norway, Peru, Poland, Romania, Sweden and Zimbabwe. In Germany, the law obliges prison authorities to encourage prisoners to assert their voting rights and to facilitate voting procedures.
How is this happening in the U.S.? The United States is the only democracy in the world where most convicted offenders who have served their prison sentences are denied the right to vote for many years – and, in some cases, for the rest of their lives.
Disproportionately, the disenfranchised are Black.
The Brennan Center for Justice reports, “Criminal disenfranchisement laws were part of the effort to maintain white control over access to the polls after Reconstruction. Over the next 100 years, Jim Crow laws prevented many people from casting a ballot. The 1965 Voting Rights Act helped reverse the tide, but many felony disenfranchisement laws remain on the books.”
At present, the laws across the U.S. states vary widely.
- In 10 states, felons may lose the vote permanently.
- In 20 states, the vote is restored after prison, parole, and probation.
Minnesota is in this category – the second-most restrictive in the country.
- In three states, the vote is restored after prison and parole.
- In 15 states, the vote is restored after prison.
- In two states, there are no restrictions. Felons can vote while in prison.
Rates of felonies and disenfranchisement
The U.S. is the world’s leader in incarceration. There are nearly 2 million people in U.S. prisons and jails – a 500% increase in the last 40 years. The U.S. has 5% of the world’s population and 25% of the world’s prison population. Changes in sentencing law and policy, not changes in crime rates, explain most of this increase.
Americans incarcerated for drug offenses increased tenfold from 40,900 in 1980 to nearly 450,000 in 2019 and now comprise half of the federal prison population. Harsh sentencing laws keep many people convicted of drug offenses in prison for long periods.
A 2017 report documents that 3% of the total U.S. population, but 15 percent of the Black male population, have served time in prison. People with felony convictions now account for 8 percent of the overall US population – but 33% of the Black male population, and the repercussions of a felony conviction can last a lifetime.
Felon disenfranchisement in Minnesota
In Minnesota, 53,000 people are currently disenfranchised. They have been released from prison following their felony convictions, but they are on probation, parole or supervised release, which prohibits restoring their voting rights.
A case brought by former felons is pending in Minnesota district court. It alleges that Minnesota’s disenfranchisement law violates the equal protection guarantee, the due process clause, and Article VII of the Minnesota Constitution. The appellants want voting rights fully restored once people complete their prison sentences.
There was no historical justification for the current disenfranchisement scheme. Article VII of the Minnesota Constitution specifies conditions for voting rights. Other than not meeting thresholds for age, residency, or citizenship, the only persons not entitled to vote are “a person who has been convicted of treason or felony, unless restored to civil rights; a person under guardianship, or a person who is insane or not mentally competent.”
That language has not changed since the Constitution was ratified in 1857.
The framers adopted felony disenfranchisement as the prevailing 19th-century practice, like white-only, male-only suffrage. They rejected permanent felon disenfranchisement, specifying disenfranchisement would end when the person was ‘restored to civil rights.’ However, the systems of probation and parole did not exist when Article VII was written.
In 2015, Minnesota had the 7th- highest rate of community supervision in the country with 2,490 of every 100,000 Minnesota adults on probation, a total of 105,000 people. Some probation periods in Minnesota are more than 25 years. Limits are now set at four years, but these limits are not ‘grandfathered’ into the system.
So – what can be done?
It is time for our state and our nation to reverse this long, shameful, discriminatory history by fully restoring the vote to former felons who have completed their sentences and are back in our communities.
World Without Genocide will hold a webinar, “Felons, Transgender People, and Others: Civil Death in the United States,” on Oct. 11, 7 p.m. to 9 p.m. Register at www.worldwithoutgenocide.org/disenfranchisement.
Ellen J. Kennedy, Ph.D., is the executive director of World Without Genocide at Mitchell Hamline School of Law and an adjunct professor of law.