Regaining Voting Rights After Felony Conviction

Retired Judge John Wilson discusses the legal issues involved in giving convicted felons the right to vote.

Recently, Democratic Presidential candidate Bernie Sanders brought a good deal of attention to his campaign. The Vermont Senator proposed giving the right to vote to people with felony convictions – even while those people were still incarcerated for their crimes. Sanders makes no apologies, and does not equivocate on this position – “If we are serious about calling ourselves a democracy, we must firmly establish that the right to vote is an inalienable and universal principle that applies to all American citizens.”

This position is so extreme, other Democratic candidates for President have criticized allowing incarcerated persons the right to vote. US Senator Cory Booker (D-NJ), stated that “if Bernie Sanders wants to get involved in a conversation about whether…the (Boston) Marathon bomber should have the right to vote, my focus is liberating black and brown people and low-income people from prison.” In other words, vote for Cory Booker, and “black and brown people” won’t lose their voting rights, since they won’t go to jail in the first place? Maybe that’s not exactly what Booker meant…and maybe the lack of clarity in his position is one reason why he is having difficulty polling higher than 2.2 percent.

Another candidate having trouble with this issue is US Senator Kamala Harris (D-CA). At first, she thought we all should “have a conversation” about the Sanders’ proposal. A day later, she said “Do I think that people who commit murder, people who are terrorists, should be deprived of their rights? Yeah, I do…I’m a prosecutor…there has to be serious consequence for the most extreme types of crimes.” Her quick pivot might explain why Harris is doing better in the polls than Booker.

Disenfranchisement for those convicted of serious crimes is an ancient idea, going as far back as Greek and Roman times. “In Athens and other Greek city-states [approximately 1100 BC – 400 BC], the status of atimia [literally without honor, a form of disenfranchisement] was imposed upon criminal offenders. This status carried the loss of many citizenship rights, including the right to participate in the polis (polity)… In ancient Rome, the related punishment of infamia could be imposed on criminal offenders.”

46 states and the District of Columbia, all bar incarcerated persons from voting. Of those, 32 states do not allow persons on parole to vote, and 29 extend that prohibition to those on probation. But the loss of voting rights is not a direct consequence of a criminal conviction – it is a collateral result. Much like a criminal conviction leading to the deportation of an illegal immigrant, disenfranchisement is a civil penalty.

This is an important distinction to understand. When a person is convicted of a crime, their sentence is the direct consequence – incarceration, parole, probation, a fine, restitution and other penalties imposed by the Court at the time of sentence. But there are also a host of indirect consequences as a result of a criminal conviction – loss of professional licensing, deportation, ineligibility for security clearance, and loss of voting rights are just some of these collateral results.

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With a collateral consequence, a criminal defendant does not have the same rights as he or she would in regards to a direct result. For instance, under the 8th Amendment to the US Constitution, a defendant has an enumerated right to not be subjected to a “cruel and unusual punishment” – that is, an unduly harsh and disproportionate sentence. However, other than Constitutional Amendments granting the right to vote to former slaves (15th), to women (19th) and to citizens beginning at the age of 18 (26th), there is no specific “right to vote” enumerated in the body of the Constitution.

There is reference made in the Constitution to “the electors in each state” (Article 1, Sec II, Clause I), however, the general right to vote appears to be more properly covered under the 10th Amendment to the Constitution – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As such, States have more of an ability to limit voting rights than is generally assumed, and as stated, 46 states have legally limited the rights of those convicted of crimes to vote – particularly while incarcerated.

This does not mean that the right to vote is lost forever to a convict. Several states provide for what is known as a “Certificate of Relief from Civil Disabilities” (CRD). In New York, for instance, the website for the New York Courts states that a CRD “is a way to remove certain Collateral Consequences of a criminal conviction. Having the CRD can remove bars to applying for jobs, licenses, public housing and more. If you apply for and receive a CRD, you will have the right to apply just like someone without a conviction.” In fact, if you are in danger of losing an employment license or public housing as a result of a conviction, at sentencing, you can ask the New York Court for a CRD.

This same remedy is available in Florida, Texas, Virginia, Illinois, and many other states.

Surely, someone as educated and experienced as Senator Bernie Sanders must realize that any right reserved to the States and the people is subject to reasonable limitations imposed by each States’ elected representatives. Obviously, Candidate Sanders isn’t interested in these sort of details. Give him credit for standing his ground when challenged – but don’t be fooled.

Photo: Pixabay

Quick Analysis

Federal Reserve Report on the Economy

The Beige Book is a Federal Reserve System publication about current economic conditions across the 12 Federal Reserve Districts. It characterizes regional economic conditions and prospects based on a variety of mostly qualitative information, gathered directly from each District’s sources. The latest edition has just been released. We present key portions of the summary here. Overall Economic Activity Overall economic activity expanded slightly, on balance, since late February. Ten out of twelve Districts experienced either slight or modest economic growth—up from eight in the previous report, while the other two reported no changes in activity. Consumer spending barely increased overall, but reports were quite mixed across Districts and spending categories. Several reports mentioned weakness in discretionary spending, as consumers’ price sensitivity remained elevated. Auto spending was buoyed notably in some Districts by improved inventories and dealer incentives, but sales remained sluggish in other Districts. Tourism activity increased modestly, on average, but reports varied widely. Manufacturing activity declined slightly, as only three Districts reported growth in that sector. Contacts reported slight increases in nonfinancial services activity, on average, and bank lending was roughly flat overall. Residential construction increased a little, on average, and home sales strengthened in most Districts. In contrast, nonresidential construction was flat, and commercial real estate leasing fell slightly. The economic outlook among contacts was cautiously optimistic, on balance. Labor Markets Employment rose at a slight pace overall, with nine Districts reporting very slow to modest increases, and the remaining three Districts reporting no changes in employment. Most Districts noted increases in labor supply and in the quality of job applicants. Several Districts reported improved retention of employees, and others pointed to staff reductions at some firms. Despite the improvements in labor supply, many Districts described persistent shortages of qualified applicants for certain positions, including machinists, trades workers, and hospitality workers. Wages grew at a moderate pace in eight Districts, with the remaining four noting only slight to modest wage increases. Multiple Districts said that annual wage growth rates had recently returned to their historical averages. On balance, contacts expected that labor demand and supply would remain relatively stable, with modest further job gains and continued moderation of wage growth back to pre-pandemic levels. Prices Price increases were modest, on average, running at about the same pace as in the last report. Disruptions in the Red Sea and the collapse of Baltimore’s Key Bridge caused some shipping delays but so far did not lead to widespread price increases. Movements in raw materials prices were mixed, but six Districts noted moderate increases in energy prices. Contacts in several Districts reported sharp increases in insurance rates, for both businesses and homeowners. Another frequent comment was that firms’ ability to pass cost increases on to consumers had weakened considerably in recent months, resulting in smaller profit margins. Inflation also caused strain at nonprofit entities, resulting in service reductions in some cases. On balance, contacts expected that inflation would hold steady at a slow pace moving forward. At the same time, contacts in a few Districts—mostly manufacturers—perceived upside risks to near-term inflation in both input prices and output prices. Highlights by Federal Reserve District Boston Business activity expanded at a modest pace in recent weeks, and prices rose slightly. Employment was flat overall, but one retailer reported significant layoffs. Convention and tourism activity grew at a robust pace. Home sales increased on a year-over-year basis, marking a turnaround. The outlook ranged from cautiously optimistic to bullish. New York On balance, regional economic activity remained flat. Labor market conditions were solid and continued to normalize as labor supply and labor demand came into better balance. Consumer spending was unchanged after a weak first quarter. Housing markets strengthened, with the spring selling season picking up beyond the seasonal norm. The pace of selling price increases remained modest. Philadelphia On balance, business activity was flat in the current Beige Book period—after declining slightly last period. Employment edged up, despite staffing and recruitment efforts slowing to a crawl. Wage and price inflation continue to moderate; however, housing affordability continues to be a concern. Overall, the outlook is positive, as firms remained optimistic about expectations for future growth. Cleveland District business activity increased modestly, as did employment. Firms anticipated greater ease filling open positions, including those that have been particularly challenging, because of increased labor availability. Wage pressures continued to normalize, and some contacts reduced starting wages for new roles. Cost and price pressures changed little. Richmond The regional economy grew at slight pace since our previous report. Consumer spending on retail goods was mixed but spending on travel and tourism was up slightly. Fifth District port activity slowed and was impacted by the collapse of the Francis Scott Key Bridge. Employment growth slowed from a moderate to a modest rate in recent weeks, but wages continued to grow moderately. Price growth also remained moderate. Atlanta The Sixth District economy grew modestly. Labor markets continued to stabilize; wage pressures eased. Many nonlabor costs moderated. Retail sales were steady, but consumers remained price conscious. Tourism remained robust. Commercial real estate conditions slowed. Transportation activity was mixed. Manufacturing grew slightly. Loan demand was flat. Energy activity improved. Chicago Economic activity increased slightly. Employment increased modestly; business and consumer spending rose slightly; nonbusiness contacts saw no change in activity; and manufacturing and construction and real estate activity were flat. Prices and wages rose moderately, while financial conditions were stable. Prospects for 2024 farm income were unchanged. St. Louis Economic activity has continued to increase slightly since our previous report. Prices have increased modestly, as contacts are broadly feeling the pressures of increases in both labor and non-labor costs. The outlook was neutral to slightly optimistic, which is generally unchanged from our previous report, but better than one year ago. Minneapolis District economic activity grew slightly. Employment grew some, but labor demand was softer. Wage pressures were present but continued to ease, while price pressures ticked up. Consumer spending was mostly flat, and manufacturing slowed modestly. Commercial and residential construction improved […]