Most states ban felons from voting while in prison, and 10 provide that the prohibition can become permanent. Is this relic of common-law tradition constitutional in the modern age? A reluctant and divided Iowa Supreme Court has declined to overturn felon disenfranchisement. But even the majority opinion managed to suggest that in the future, the constitutional answer should be different. Other courts will be listening. Over time, such bans on those who have served their sentences can and should be overruled.
The Iowa law, which dates to the early years of its statehood, says that people convicted of “infamous” crimes lose the right to vote. At common law, infamous crimes included treason, felony and a category known in Latin as crimen falsi, which involved falsehood and deception.
The Iowa case was brought by the local American Civil Liberties Union chapter on behalf of Kelli Jo Griffin, a woman convicted of a felony for transporting 100 grams or less of cocaine. She was a well-chosen plaintiff. Now 42, she received a suspended sentence for her crime and finished her probation in 2013. She tried to register to vote on Nov. 5, 2013, but her ballot was rejected, and she was tried for falsely registering. A jury acquitted her of the charge. Her civil suit asserts simply that she wants to vote.
A court can’t just overturn any law it doesn’t like. So Griffin’s lawyers advanced two claims. The first insisted that Griffin’s felony conviction didn’t belong in the category of infamous crimes that would disqualify her from voting under Iowa law. The second was that even if her felony conviction counted as infamous, the Iowa law violated a fundamental due-process right.
The Iowa court split 4-3 on the issue. The majority opinion reviewed the legal history of infamy, which it defined based on scholarly sources as “civic disability, conceived consciously as based on a moral imperfection.” The concept goes back to the Roman law of infamia and made its way into English common-law through the canon law of the church.
Eventually, legal infamy was divided into two categories, the infamy of the crime committed and infamy of the punishment imposed. Interestingly, voter disqualification derived from the first category. An infamous crime could disqualify someone from serving as a witness, a juror — or a voter.
Today, convicted felons can testify in court and in some places are able to serve on juries. But the court's majority reasoned that it lacked the authority to overturn the voting ban. Its logic was based on the principle of judicial restraint. The court isn't supposed to substitute its judgment for that of the legislature.
The majority said that it didn’t want its decision to foreclose future courts from holding to the contrary, a signal that its members were troubled by the conclusion.
Three justices dissented in three opinions. One argued that an infamous crime must have some connection with voting, a position that some courts elsewhere have endorsed. All the dissenting justices emphasized that the court should have exercised its power more aggressively.
The dissent’s effort to narrow the felon disenfranchisement ban is admirable, but not ambitious enough. It fails to consider what’s really troubling about the bans, both morally and legally.
Griffin apparently didn’t argue that depriving her of the right to vote constituted cruel and unusual punishment, or that it violated the equal-protection clause of the state and federal constitutions. But if I had been advising her lawyers, I would’ve suggested throwing those arguments in, too.
What’s wrong with felon disenfranchisement is that it is a symbolic punishment aimed at making convicted felons into second-class citizens. Voting today is valuable for what it communicates about membership in the community.
The point of excluding felons isn’t that we are worried about their trustworthiness, whatever the historical purpose may have been. It’s that we want them to see themselves as outside the boundaries of the political community.
Moral retribution is one of the permissible objectives of criminal punishment. Otherwise prison wouldn’t be justifiable, since evidence of its rehabilitative effects has remained elusive.
But not all forms of retribution are morally or legally acceptable. In particular, in the modern era, we’ve rejected the idea of spectacular punishments like branding or cutting off ears or hands. Those punishments are cruel and unusual in part because they are intended to send a permanent message to the criminal and to everyone else — in short, that he or she is infamous for the rest of their life.
Felon disenfranchisement is like that. It has no goal but to humiliate, exclude and deprive the former criminal of membership in the community. That should be considered cruel and unusual. And it also violates the equal protection of the laws, making those who have served their sentences into something less than their fellow citizens.
Noah Feldman: firstname.lastname@example.org