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England in medieval times was, no doubt, a brutal place for those deemed in opposition to the stability of the crown. Criminals faced all manner of punishments—beheadings, mutilated body parts, hangings and trips to the rack, which stretched a person’s anatomy literally to the breaking point and beyond. Though survival was a rare occurrence, the English, borrowing from the ancient Greeks and Romans, still employed a method to permanently relegate offenders to the trash heap of society, barely third-class citizens even after they’d otherwise served their time.
Pronounced by the courts “civilly dead,” criminals were stripped of their citizenship, meaning they couldn’t hold public office, couldn’t appear in court, couldn’t serve on a jury, couldn’t even own property. And, of course, they could no longer vote. They were, quite literally, men without a country.
Like much of English common law, America borrowed the concept of the civilly dead for its own, in some cases nefarious, purposes. The idea of stripping a person of citizenship is as old as the Revolution, but Southern states resurrected it after the Civil War with the idea of keeping black voters off the rolls.
“The history behind disenfranchisement in the United States was closely tied to racial motives and attempts to prevent newly freed slaves from taking part in the political process,” says Dmitry Lev, an attorney who has researched felon disenfranchisement. “Minorities still face a heavy disparate impact resulting from disenfranchisement laws, as statistically there is a greater number of minority felons.”
In Tennessee, there are an estimated 100,000 felons eligible for the voting rolls, about 40 percent of whom are black. An untold number probably already would have registered to vote if not for a Byzantine set of procedures that, until recently, were obstacles to regaining citizenship rights.
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“We had to hold training sessions for lawyers to explain the process because it raised so many questions,” says Charles Grant, an attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz who won a 2004 award for helping felons re-enfranchise. “You can only imagine what somebody not trained in the law was struggling with trying to get through the process.”
During the last legislative session, Tennessee legislators finally streamlined the process so that former felons no longer were required to hire a lawyer and file for their rights in circuit court. The process is much cleaner—ex-cons apply to the Board of Probation and Parole, which checks to ensure they are no longer incarcerated, on probation or parole. The county criminal clerk’s office signs off on felons who have paid financial restitution to the court. And the Department of Human Services notifies the board about whether felons are current with child support payments.
Not surprisingly, this last requirement is particularly worrisome to the ACLU, which is hosting eight town hall forums across the state to inform ex-cons about the new, easier enfranchisement process. (The ACLU’s Davidson County forum will be 6:30 p.m. Aug. 31 at Jefferson Street Missionary Baptist Church.) As the bill to streamline felon voting wound through the legislature last session, Rep. Stacey Campfield, a Republican real estate developer from Knoxville, tacked on an amendment requiring ex-cons to have paid child support before their voting rights can be restored. As if to show how ridiculous it is to tie voting rights to child support, two Democrats, Tommie Brown and Larry Turner, filed (and withdrew) amendments requiring all Tennesseans to have paid child support before they can vote. Expect the ACLU to lobby for repeal of the child support provision next legislative session, especially given that it’s typical for ex-cons to be late paying child support.
“Former felons have the most difficult time getting jobs,” Grant, the attorney, says.
The irony of trying to restore the voting rights of ex-cons is that citizenship means less to many Americans today than it did when only white male landowners were allowed to vote. Turnout among eligible voters for the 2004 presidential election was 60 percent, but that figure is considered an anomaly. Most mid-term elections, like the one scheduled for Nov. 7, average below 40 percent turnout, and some local elections barely crack double digits. Consequently, some scholars wonder whom the ACLU is really fighting for, as many felons won’t register no matter how easy re-enfranchising becomes for them.
In Maine, for example, where felons can vote even while in prison, few inmates take advantage of the liberal voting policies. (Vermont and Maine are the only two states allowing inmates to vote while behind bars.) Maine doesn’t keep track of how many inmates vote because inmates are registered in counties where they resided before being sent to the clink. But according to an estimate based on requests for absentee ballots, fewer than 5 percent of Maine inmates actually receive ballots. In all likelihood, still fewer bother to mail them to election officials. “I don’t think voting has the meaning it used to,” says Mount Holyoke University sociology professor Richard Moran.
Moran’s contention is that the emphasis on felon voting is more about political expedience than anything else. He suggests activism for the issue began immediately after the 2000 election by Democrats jilted by the results in a state—Florida—that has some of the most punitive disenfranchisement laws in the country. “There’s a lot of left-leaning voters who feel if prisoners hadn’t been disenfranchised in 2000, the election’s outcome would have been much different,” Moran says. “That’s what’s fueling this debate.”
Bunk, ACLU officials say. They note that they’ve been lobbying for less punitive laws since the 1960s. “This issue has been at the forefront among voting rights activists since the 1960s,” says Hedy Weinberg, executive director of the Tennessee ACLU. “We started to become more aware after the debacle in Florida. But the whole idea of having voting rights taken away, the ACLU and other groups have been quite concerned for a long time.”
The ACLU isn’t making any predictions about how many former Tennessee felons will register to vote. It’s too soon too tell, they say. In any event, restoring voting rights may be less about how many ex-cons sign up than what happens when they do. According to a recently released book from two Midwestern sociology professors, felons involved in the political process are less likely to commit crimes than those who are prevented from voting. Northwestern professor Jeff Manza, who co-wrote Locked Out: Felon Disenfranchisement and Democracy, says there’s too little data to say how much the recidivism rate might drop among voting felons. But he says evidence shows it’s one of the factors—along with marriage, jobs and church attendance.
Of course, people tend to commit less crime as they get older—they “age out” of crime, as sociologists like to say. Voting, it seems, is one method to help felons become mature enough to realize crime isn’t worth the trouble.
Denver Schimming spent several years in a federal penitentiary for robbing an Old Dominion bank in Goodlettsville. In 1997, he was married by the same judge who sent him to prison. In 2000, after realizing his voting rights had been automatically restored, he voted for the first time since his arrest. He’s now a 48-year-old sales executive telling his life story at the ACLU town meetings to encourage other felons to straighten out.
“People do change,” he says. “You can make a mistake and still get your life turned around. The mistake doesn’t have to be the end. It doesn’t have to define the rest of your life.”