Unshackling the Vote: Restoring Civic Participation for Persons Recently Released from Incarceration

Unshackling the Vote:

Restoring Civic Participation for Persons Recently Released from Incarceration

Danielle Browne, John R. Lewis Social Justice Fellow

Summary

H.R. 4987 aims to safeguard the federal voting rights of individuals upon their release from incarceration. The potential positive impact of this bill on the Black community is significant, as it addresses the long-standing issue of disproportionately high incarceration rates among Black Americans.  This policy brief explores the implications and importance of H.R. 4987, delving into the benefits for both individuals seeking a fresh start after reintegration and the broader Black community, as well as what is at stake for the 2024 election cycle if legislation of its kind remains unimplemented.

What is H.R. 4987?

It has been common practice in the United States to make felons ineligible to vote, in some cases permanently. Kentucky was the first among U.S. states to establish criminal disenfranchisement. On April 19, 1792, Kentucky’s state constitution was ratified to exclude from suffrage those who had been convicted of bribery, perjury, forgery, or other high crimes and misdemeanors. Subsequently, the state of Vermont ratified its constitution on the 9 th of July within the same year, setting a trend for other states to follow. By 1870, 28 states of the country’s then 38 states, enacted extensive laws to prevent incarcerated individuals from exercising their right to vote. 1

This practice saw a considerable expansion during the Civil War as lawmakers, particularly in the South, introduced numerous criminal laws specifically designed to target Black citizens. The heightened incarceration rates among Black Americans can be traced back to the passage of the Thirteenth Amendment which, while abolishing slavery, included an exception for involuntary servitude as a punishment for those convicted of crimes. This legal loophole created a framework that allowed the South to establish a lawful and inexpensive labor market by exploiting a continuous influx of African Americans who, as a result of discriminatory practices, became targets for mass imprisonment. 2 The interconnected history of discriminatory legislation and incarceration patterns underscores their long-lasting impact on the current state of the criminal justice

1 ProCon.org. (2023, March 27). U.S. History of Felony Disenfranchisement https://felonvoting.procon.org/historical-timeline/

2 Myers, E. (2021, January 17). Millions of Black Americans are Stripped of the Right to Vote Each Year. https://lawblogs.uc.edu/ihrlr/2021/01/17/millions-of-black-americans-are-stripped-of-the-right-to-vote-each-year/

CPAR | Unshackling the Vote: Restoring Civic Participation for Persons Recently Released from Incarceration

system. The re-integration of formerly incarcerated persons into society is a crucial aspect of a functioning democracy that values the voices of all its citizens. As the nation grapples with issues of criminal justice reform and seeks to address systemic inequities, the passage of legislation allowing recently released individuals to exercise their federal voting rights emerges as a beacon of change. To participate in the democratic process through voting not only serves as a fundamental right but plays a pivotal role in rehabilitation and reintegration. Empowering individuals to actively engage in civic life fosters a sense of responsibility and connection to the broader community. According to a 2022 poll, eighty-six percent of American voters believe that the criminal justice system should focus on rehabilitating people to become productive law-abiding citizens.3 By restoring voting rights to the formerly incarcerated, society acknowledges their potential for growth and transformation, breaking the cycle of disenfranchisement that often accompanies a criminal record.

Aptly named the DemocracyRestorationActof2023, H.R. 4987 addresses the voting rights of individuals convicted of a criminal offense and the restoration of their voting rights.

The House of Representatives had included H.R. 4987 twice as part of omnibus democracy reform bills in 2019 and 2021—the For the People Act and the Freedom to Vote: John R. Lewis Act, respectively—then re-introduced it as a standalone bill. 4,5,6 The standalone H.R. 4987 bill was introduced in the House of Representatives by Congresswoman Jasmine Crockett (D-TX-30) on July 27, 2023, and in the Senate by Senator Benjamin L. Cardin (D-MD) on May 18, 2023. 7,8  H.R. 4987 declares that U.S citizens have the unalienable right to vote in an election for federal office regardless of whether that person has been convicted of a criminal offense unless they are serving a felony sentence during the time of the election. Additionally, the bill prohibits federal funding from being attached to the construction or improvement of a place of incarceration unless the U.S citizens incarcerated in that jurisdiction are notified, upon their release, of their voting rights.

3 Daniel Gotoff, et.al., (2022, August 9). New National Poll Shows Majority Favor Guaranteed Right to Vote for All.

https://www.sentencingproject.org/fact-sheet/new-national-poll-shows-majority-favor-guaranteed-right-to-vote-for-all/

4 Brennan Center for Justice. (2019, August 8). Democracy restoration act. https://www.brennancenter.org/our-work/ policy-solutions/democracy-restoration-act

5 Congress.gov. (2021). H.R.5746 – Freedom to Vote: John R. Lewis Act.

https://www.congress.gov/bill/117th-congress/house-bill/5746/text

6 Congress.gov. (2021). H.R.1 – For the People Act of 2021.

https://www.congress.gov/bill/117th-congress/house-bill/1?q=%7B%22search%22%3A%22H.R.1%22%7D&s=5&r=1

7 Congress.gov. (2023). H.R.4987 – Democracy Restoration Act of 2023

https://www.congress.gov/bill/118th-congress/house-bill/4987/text?s=1&r=22

8 Congress.gov. (2023). S.1677 – Democracy Restoration Act of 2023.

https://www.congress.gov/bill/118th-congress/senate-bill/1677/text

The Importance of H.R. 4987 for the Black Community At Large

Nationally, one in 81 Black adults in the United States is serving time in state prison.

According to data from the Federal Bureau of Prisons, 38.7 percent of inmates in federal prison are Black. 9 In 12 states (Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia), more than half of the prison population was Black. In 2021, seven states (California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin) maintained a Black-white disparity larger than 9 to 1. 10

According to a 2022 Sentencing Project report, an estimated 4.6 million Americans could not vote in 2022 due to felony disenfranchisement laws. 11 However, more than 5.3 percent of the Black voting age population was disenfranchised nationally compared to 1.5 percent of other races. Additionally, one-in-19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. 12

9 Federal Bureau of Prisons. (2024, January 6). Inmate race. BOP Statistics: Inmate Race.

https://www.bop.gov/about/statistics/statistics_inmate_race.jsp

10 Nellis, A. (2021). The color of justice: Racial and ethnic disparities in state prisons. The Sentencing Project. https://www. sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/

11 The Progressive Newswire. (2022, October 25). New Report: 4.6 million Americans barred from voting due to felony convictions. The Progressive Newswire. https://www.commondreams.org/newswire/2022/10/25/new-report-46-millionamericans-barred-voting-due-felony-convictions

12 Uggen, C., et. al., (2022, October 25). Locked out 2022: Estimates of people denied voting rights. The Sentencing Project. https://www.sentencingproject.org/reports/locked-out-2022-estimates-of-people-denied-voting-rights/

Since January 2021, 18 states have enacted at least 30 separate laws believed to make it more difficult to vote particularly by making mail-in voting and early voting more difficult, imposing harsher ID requirements, and making faulty voter purges more likely. 13 In addition, at least 14 states have enacted 17 restrictive laws, all of which will be in place for the 2024 general elections. 14 This exceeds the number of restrictive voting laws enacted every year for the past decade besides 2021. 15

While the United States remains fully in an era of mass incarceration, with high imprisonment levels persisting nationwide, there has been a notable shift. Specifically, the number of incarcerated Black Americans has decreased by 39 percent since its peak in 2002. 16 If these trends persist, it indicates a significant portion of recently released individuals reintegrating into society. As many navigate the process of reentry, the implementation of H.R. 4987 would grant formerly incarcerated individuals the ability to advocate for policies that address the root causes of criminal behavior as well as contribute to the creation of more just and equitable laws. Evidence indicates that the demographic makeup of an electorate heavily influences the voting behavior of lawmakers who represent it. As such, a higher share of Black voters tends to raise the probability that lawmakers in office will advocate for and promote the interests—including the economic concerns—of Black communities. 17 Additionally, according to a 2023 report from the Sentencing Project, the restoration of voting rights for individuals with felony convictions has the potential to enhance community safety. The report emphasizes that not only does having the right to vote matter, but the actual act of voting is correlated with decreased rates of recidivism. Voting rights restoration plays a significant role in shaping the perceptions of justice-impacted individuals regarding their identity as valued community members and their capacity to lead lives free of crime.

13 Brennan Center for Justice. (2021, July 22). Voting Laws Roundup: July 2021.

https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-july-2021

14 Brennan Center for Justice. (2023, October 19). Voting Laws Roundup: October 2023.

https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-october-2023

15 Brennan Center for Justice. (2023, October 19).

16 Ghandnoosh, N. (2023, October 11). One in Five: Ending Racial Inequity in Incarceration.

https://www.sentencingproject.org/reports/one-in-five-ending-racial-inequity-in-incarceration/

17 Jones, D. B., & Walsh, R. (2018). How do voters matter? Evidence from US Congressional redistricting. Journal of Public Economics, 158, 25–47.

https://doi.org/10.1016/j.jpubeco.2017.12.005

The Consequences of Not Passing H.R. 4987

Felony disenfranchisement not only obstructs the voting rights of Black citizens but also has broader implications for the overall well-being of their communities. A 2022 study reveals that residing in states with elevated levels of racialized disenfranchisement correlates with increased depressive symptoms, greater functional limitations, and heightened challenges performing instrumental activities of daily living amongst Black people.18 These findings further suggest that policies aiming to mitigate disproportionate Black felony disenfranchisement have a significant impact on and are valuable tools for improving population health equity— affirming the importance of intersectional approaches in addressing systemic inequities as well as recognizing the interconnectedness of political and public health outcomes.

Secondly, it is an undeniably American sentiment that it is undemocratic to deny the right to vote for any adult who pays taxes, regardless of their past. According to the Internal Revenue Service, incarceration neither changes one’s obligation to pay taxes and tax debts nor prohibits the receipt of tax credits and deductions upon release.19 In response to the 1765 Stamp Act, American colonists declared that taxation without representation was tyranny

18 Homan, P. A., & Brown, T. H. (2022). Sick and tired of being excluded: Structural racism in disenfranchisement as threat to population health equity. Health Affairs, 41(2), 219–227. https://doi.org/10.1377/hlthaff.2021.01414

19 IRS Federal Interagency Reentry Council. (2014, September 24). Reentry Myth Buster! On Federal Taxes. https://nationalreentryresourcecenter.org/resources/reentry-myth-busters

and the resulting protests eventually evolved into the American Revolution.20 In an apparent disregard for this foundational principle, individuals with felony convictions, despite paying taxes, are often denied their right to representation through the denial of their voting rights.

Thirdly, felony disenfranchisement policies have been identified as discriminatory and in violation of international law by the United Nations Human Rights Committee. On July 28, 2006, the committee made a declaration urging the restoration of voting rights for individuals upon their release from prison. Expressing concerns, the committee emphasized that the pervasive practice of denying voting rights to minority groups was counterproductive to the efforts of facilitating the reintegration of those reentering society after serving their prison sentences –contravening principles of justice and human rights on a global scale.21

Moreover, there is compelling evidence indicating that the ability to vote can positively impact economic status. A specific study delved into the effects of political re-enfranchisement of Black Americans in the South resulting from the passage of the 1965 Voting Rights Act (VRA)— contributing to improvements in their relative economic status during the 1960s and 1970s. The study documented that the Black-white pay gap narrowed from about 55 percent in 1960 to 80 percent in 1980. Additionally, the study estimated that the 1965 Voting Rights Act accounted for one-fifth of the narrowing of the Black-white pay gap during that period.22 Due to a close link between misdemeanor offenses and lower wages, the 1965 Voting Rights Act is believed to have improved the economic well-being for the Black community in this way, as well.23, 24

The national landscape regarding voting disenfranchisement laws for formerly incarcerated individuals is ever-changing, making it a pertinent topic as we continue to move through 2024. One important question remains: Howwillstatescontinuetomodify

20 Britannica. (2023, December 1). Stamp Act. Encyclopædia Britannica.  https://www.britannica.com/event/Stamp-Act-Great-Britain-1765

21 ACLU. (2006, August 25). U.N. Committee Says U.S Bans on Former Prisoner Voting Violate International Law. https://www.aclu.org/documents/un-committee-says-us-bans-former-prisoner-voting-violate-international-law

22 Aneja, A.P., & Avenancio-León, C.F. (2018). The Effect of Political Power on Labor Market Inequality: Evidence from the 1965 Voting Rights Act. https://www.semanticscholar.org/paper/The-Effect-of-Political-Power-on-Labor-Market-fromAneja-Avenancio-León/76c11d7b23c031282a5bf5eae2ebdfabe6c1213f

23 Brown, C. (2019). Incarceration and Earnings: Distributional and Long-Term Effects. J Labor Res 40, 58–83 (2019). https://doi.org/10.1007/s12122-018-9280-0

24 Craigie, T.-A., Grawert, A., & Kimble, C. (2020, September 15). Conviction, imprisonment, and lost earnings - brennan center for justice. Brennan Center for Justice.

https://www.brennancenter.org/sites/default/files/2020-09/Conviction_Imprisonment_and_Lost_Earnings.pdf

CPAR | Unshackling the Vote: Restoring Civic Participation for Persons Recently Released from Incarceration

felonydisenfranchisementlaws? Each state establishes its own regulations determining whether —and to what extent— individuals with prior felony convictions lose their voting rights. The United States has long stood out for its stringent denial of voting rights to citizens with criminal records. According to the National Conference of State Legislatures, despite 23 states having restored the right to vote upon release from prison in 2023, at least 11 states may cause formerly incarcerated individuals to lose their right to vote permanently. 25, 26 In 2024, however, there are progressive changes on the horizon as California, Massachusetts, and Oregon continue to urge lawmakers to eliminate felony disenfranchisement laws through granting voting rights to individuals even while they are incarcerated. 27, 28, 29

While relatively new in the United States, this concept has been successfully implemented in other democracies worldwide. Notably, France’s incarcerated population has retained the right to vote since 1994. 30 These states could potentially initiate a broader movement in the landscape of voting rights, inspiring more states to adopt policies allowing voting within prison walls and revising laws that disenfranchise formerly incarcerated individuals. As we move forward, it will be essential to monitor these developments. With great hope, the potential ripple effect could also lead to the challenging of preconceptions about who among us deserves the right to vote.

25 ProCon.org. (2023, May 01). State Voting Laws & Policies for People with Felony Convictions.

https://felonvoting.procon.org/state-felon-voting-laws/

26 Timms, M. (2023). Ahead of 2024, Felons Fight to Regain Right to Vote. MSN.

https://www.msn.com/en-us/money/news/ahead-of-2024-felons-fight-to-regain-right-to-vote/ar-AA1hKaLQ

27 Christopher, B. (2023, February 8). Will California allow ballots behind bars?. Cal Matters.

https://calmatters.org/newsletters/whatmatters/2023/02/california-voting-prison-inmates/

28 Drysdale, S. (2023, April 28). Bill that would restore prison voting rights in Mass. Advances out of election laws committee. Wbur.

https://www.wbur.org/news/2023/04/28/prison-voting-rights-bill-massachusetts

29 French, P. (2023, March 16). Oregon Tries Again to Restore Voting Rights in Prisons. Bolts.

https://boltsmag.org/oregon-tries-again-to-restore-voting-rights-in-prisons/

30 Stangler, C. (2022, April 21). In French Presidential Election, Thousands More Vote from Prison. Bolts.

https://boltsmag.org/french-presidential-election-prisons/

CPAR

Who Deserves the Right to Vote?

The Supreme Court stated, as early as 1886, that voting is regarded as a fundamental political right because it is preservative of all other rights. 31 However, there exists a notable partisan divide on the perception of voting rights:

• Only 32 percent of Republicans assert that voting is “a fundamental right for every adult U.S. citizen and should not be restricted in any way.”

• 67 percent of Republicans consider voting as “a privilege that comes with responsibilities and can be limited.”

• Older Republicans were found to be the least likely to view voting as a fundamental right

• 78 percent of Democrats and Democrat-leaning independents believe that voting is a fundamental right.

• Only 21 percent of Democrats and Democrat-leaning independents view voting as a privilege. 32, 33

THE PUBLIC ALSO DEMONSTRATES A SPLIT ON THIS ISSUE:

• 57 percent of Americans expressed that voting is “a fundamental right for every adult U.S. citizen and should not be restricted in any way.”

31 Douglas, J. (2021, July 30). Why Voting Isn’t A “Privilege”. Washington Monthly. https://washingtonmonthly.com/2021/07/30/why-voting-isnt-a-privilege/

32 Pew Research Center. (2021, July 21). Older Republicans least likely to view voting as a ‘fundamental right’. Pew Research Center. https://www.pewresearch.org/short-reads/2021/07/22/wide-partisan-divide-on-whether-voting-is-afundamental-right-or-a-privilege-with-responsibilities/ft_2021-07-22_votingattitudes_04/

33 Pew Research Center. (2021, July 21). Democrats mostly view voting as a “fundamental right”; Republicans more likely to say it’s a “privilege.” Pew Research Center. https://www.pewresearch.org/short-reads/2021/07/22/widepartisan-divide-on-whether-voting-is-a-fundamental-right-or-a-privilege-with-responsibilities/ft_2021-07-22_ votingattitudes_01a/

• Along racial lines, 77 percent of Black people believe voting is “a fundamental right for every adult U.S. citizen and should not be restricted in any way”

• Only 51 percent of white Americans believe that voting is a fundamental right. 34

A prevalent perspective that summarizes the underscoring sentiments demonstrated by this data is that felons are deprived of their ability to vote because of their own decision to commit an act for which they assume the risks of punishment. In other words, “they did this to themselves.” This logic has served as the foundation for the American criminal justice system. But how well has it served us to assume that crime is a matter of poor decision-making? Despite comprising nearly 14 percent of the U.S. population, Black people accounted for 53 percent of all people in the U.S. who were falsely convicted of a serious crime, according to a 2022 report from the National Registry of Exonerations. 35 Black Americans were also identified as seven times more likely than white people to be wrongfully convicted of three major crimes: homicide, sexual assault, and drug offenses. In the specific context of drug crimes, the disparity was even more pronounced, with Black people being 19 times more likely to face wrongful convictions. 36 The criminal justice system is wide-ranging and has criminalized millions, many of which are minorities.

Given that Black voters are disproportionately impacted by voter disenfranchisement laws, particularly through incarceration, a significant connection exists between felony disenfranchisement and rights as citizens. It is noteworthy that numerous felony disenfranchisement laws were enacted during the Jim Crow era, designed with the explicit intent to prevent Black Americans from exercising their right to vote. Additionally, the racial stereotyping of African Americans has contributed to the justification for policies and practices such as racial profiling, thereby heightening the vulnerability of Black people to negative outcomes within the criminal legal system. In other words, society often allows the criminal justice system to do the work of criminalizing based on race, to stop the incarcerated from improving upon the systems that incarcerated them.

34 Pew Research Center. (2021, July 21). Black, Hispanic and Asian American adults are more likely than White adults to say voting is a ‘fundamental right’. Pew Research Center. https://www.pewresearch.org/short-reads/2021/07/22/ wide-partisan-divide-on-whether-voting-is-a-fundamental-right-or-a-privilege-with-responsibilities/ft_2021-07-22_ votingattitudes_03a/

35 Gross, S. (2022, September). Race and wrongful convictions in the United States. National Registry of Exonerations. https://www.law.umich.edu/special/exoneration/Documents/Race%20Report%20Preview.pdf

36 Wise, A. (2022, September 27). Wrongful convictions disproportionately affect Black Americans, report shows. NPR. https://www.npr.org/2022/09/27/1125442683/wrongful-convictions-disproportionately-affect-black-americansreport-shows

The 2024 Election Year

The number of Black eligible voters in the U.S. is projected to reach 34.4 million in November of 2024, a turnout rate higher than among Latino and Asian eligible voters. 37 As of 2022, about 52 percent of Black eligible voters in the U.S. come from eight states. Texas has the largest number with 2.9 million, followed by Georgia and Florida (2.6 million), New York (2.4 million), California (2.0 million), North Carolina (1.8 million), and Maryland and Illinois (1.4 million). In the same year, Black voters made up nearly half of all eligible voters in D.C., alone. 38 As of 2023, the only locations in the U.S. where felons retain their right to vote are Maine, Vermont, and D.C. 39

In 2024, more than 5.8 million convicted Americans are expected to be disenfranchised, with Black Americans constituting 40 percent of felons unable to vote. 40 The denial of Black American voting rights poses a significant challenge as they have historically

37 Pew Research Center. (2024, January 9). Black eligible voter population in the U.S. is projected to reach 34.4 million in 2024, up 7% from 2020. Pew Research Center. https://www.pewresearch.org/short-reads/2024/01/10/key-facts-aboutblack-eligible-voters-in-2024/sr_24-01-10_black-ev_1/

38 Pew Research Center. (2024, January 9). Texas had the most Black eligible voters in 2022, but D.C had the highest share. Pew Research Center. https://www.pewresearch.org/short-reads/2024/01/10/key-facts-about-black-eligiblevoters-in-2024/sr_24-01-10_black-ev_3/

39 Dr. Robinson, T. & Casey, L. (2023, December). Eliminating Barriers to Reentry for Returning Citizens: A 50 State Examination of Reentry Practices. Congressional Black Caucus Foundation. https://issuu.com/ congressionalblackcaucusfoundation/docs/2023_cbcf_cpar_reentry-practices_final?fr=sZmE1YjYzNjE2ODA

40 Scott, E. (2023, August 16). Fight over felons’ voting rights heats up for 2024. Axios. https://www.axios.com/2023/08/16/felon-vote-where-us-map

played a pivotal role in shaping the political landscape based on the candidates they endorse and driving forward progressive agendas. In addition, Black eligible voters are more likely to be women and tend to be younger. Sixty percent of Black eligible voters are under the age of 50. 41 This development raises concerns for advancing progressive causes as younger voters have shown that issues, not candidates, are what overwhelmingly motivate them. This is especially true considering the strong commitment of younger generations to human rights and social justice issues. Younger demographics tend to place significant importance on movements addressing women’s bodily autonomy, LGBTQ+ rights, and other contemporary hot-button issues of our time. 42

When the nation was founded, women were not allowed to vote, nor African Americans, nor the poor, nor the illiterate. Now that public sentiments have shifted, we look back on that history with disapproval and embarrassment. Granting these groups the right to vote was not just an act of rectifying past injustices but a step towards ensuring that this nation’s democratic principles are fully realized. In the same way that the exclusion of various groups from the democratic process once seemed acceptable, the denial of voting rights to Black felons warrants scrutiny and reconsideration. It is a call to honor the progress made in expanding suffrage rights and to recognize the importance of everyone’s voice in our diverse society.

41 Krogstad, J. & Moslimani, M. (2024, January 10). Key facts about Black eligible voters in 2024. Pew Research Center. https://www.pewresearch.org/short-reads/2024/01/10/key-facts-about-black-eligible-voters-in-2024/

42 Potts, M. (2023, December 5). Issues, not candidates, are motivating young voters. ABC News. https://abcnews. go.com/538/issues-candidates-motivating-young-voters/story?id=105356525

CENTER FOR POLICY ANALYSIS AND RESEARCH Criminal Justice

For more research visit cbcfinc.org