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Even the strongest critics of felon disenfranchisement almost without exception presume that the electoral exclusion of currently incarcerated persons is self-evident and needs no justification. But from where does the seeming self-evidence come? If felon disenfranchisement is a form of punishment, it is a clear failure.


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It has no retributive value, it does not deter crime, and it undermines rehabilitation by preventing individuals from taking part in civic life. But felon disenfranchisement is a productive failure. It does identifiable social and political work for our society, even if that work is deeply anti-democratic. First, felon disenfranchisement conveys moral approbation by denying individuals an emblematic right of self-government. Disenfranchisement is able do this productive work not because voting is itself an effective practice of self-government it arguably is not , nor because the franchise creates a more representative government it arguably does not , nor because it ensures that policy reflects the needs of all who live and die within a given political community it demonstrably does not.

This insight, developed succinctly by the late political theorist Judith Shklar, highlights how the right to vote sets boundaries and limits to equality insofar as it held only by those individuals who have been granted equal public standing on the decisions put up for a vote.

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Throughout U. To fight for the right to vote is to fight to exit this degraded political position while pushing for public standing as an equal among the non-slaves, the citizens. See note 3 below. But the key is to recognize that the right to vote can only designate one as a political equal when the sphere of equality is bounded by exclusions that the included recognize and know, even if they disavow those exclusions.

When arguments are made if they are even made at all to justify the exclusion of someone from voting in a nominally democratic community, these arguments hinge on disqualification from equal public standing, explicitly or implicitly suggesting that those who lack that standing are inferior to the community of equals who possess it. In the U. Hence it is that today, all children, all unnaturalized foreigners, persons under guardianship for mental incompetence in 39 states , and persons convicted of felonies in every state except Maine and Vermont, two of the Whitest states in the US are all marked by the franchise as unequal.

Maryland, it turns out, is an exemplary case for showing how the expansion of democratic suffrage is accomplished by quietly shoring up barriers at the margins of the franchise. Constitution, new state voting rules leveraged an exception in the 14th Amendment to entrench wide-sweeping criminal disenfranchisement policies. As in most states that instituted these restrictions in the 19th century, lawmakers sought to secure the authority of a patriarchal White vote and to defend the political position afforded by Whiteness itself.

How the right to vote became a weapon of exclusion | Scalawag

To be a criminal was to be marked with "infamy," imbued with deceit and deception, and therefore no longer a rights-bearing member of the polity. Without having to mention or consider racial difference openly, the categories of infamy, moral turpitude, and deceit were directly linked with Blackness. See note 4 below.

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This previous attempt to hide White supremacy beneath moral judgement can help us understand how felon disenfranchisement reform and mass incarceration became intertwined in the post-Civil Rights era. If current usage of the term appears to be less archaic or more technical, this is arguably because of the widespread standardization of criminal codes across the U. But the logic of moral differentiation and political inequality remains.

And in , the new reforms follow in the same mode: slowly bringing into the democratic community individuals newly deemed worthy while relying on the continued exclusion of individuals currently incarcerated persons, in this case whose known lower public standing affirms the equality of the newly eligible voters. This work remains the same, no matter how narrowly disenfranchisement is targeted, how technically it is applied, or how swift the restoration process is.

And in this process, the criminal justice system—with its clearly racialized impact—becomes the primary mechanism for determining whether a citizen is morally fit for political life. But we must acknowledge that these improvements have costs. As with all reforms that leave the underlying logics in place, these costs cannot be measured or known in advance.

Return to Book Page. Preview — Living with Infamy by Pippa Holloway. Living in Infamy examines the history of disfranchisement for criminal conviction in the United States during the late 19th and early 20th centuries. In the post-war South, white southern Democrats expanded the usage of laws disfranchising for crimes of infamy in order to deny African Americans the suffrage rights due them as citizens, employing historical similarities bet Living in Infamy examines the history of disfranchisement for criminal conviction in the United States during the late 19th and early 20th centuries.

In the post-war South, white southern Democrats expanded the usage of laws disfranchising for crimes of infamy in order to deny African Americans the suffrage rights due them as citizens, employing historical similarities between the legal statuses of slaves and convicts as justification.

At the same time, our nation's criminal code changed. The inhumane treatment of prisoners, the expansion of the prison system, the public nature of punishment by forced labor, and the abandonment of the idea of reform and rehabilitation of prisoners all contributed to a national consensus that certain categories of criminals should be permanently disfranchised.

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As racial barriers to suffrage were challenged and fell, rights remained restricted for persons targeted by such infamy laws; criminal convictions--in place of race--continued the disparity in legal status between whites and African Americans. Decades later, after race-based disfranchisement has officially ended, legislation steeped in a legacy of racial discrimination continues to perpetuate a dichotomy of suffrage and citizenship that still affects our election outcomes today.

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