Question Two: An Amendment Without A Purpose

Alec Ewald (742 words)
Hampshire Gazette (Northampton) and Deerfield Recorder, October 2000

Prohibiting criminals from voting has an intuitive appeal.  Many Massachusetts voters may respond to Question 2, which would limit the offices for which incarcerated felons may vote, with a paraphrase of folksinger Jonathan Edwards: “If they can’t even run their own lives, we’ll be damned if they’ll run ours.”  But Americans do not take constitutional amendments lightly, and analysis of the ideas behind Question 2 shows its foundations to be weak and its purposes unclear.  Consider the arguments:

“Criminals should not control our lives.”

The concern behind this claim is that criminals would vote, in concert, to elect pro-crime candidates or to weaken the criminal law.  Yet only a few hundred prisoners in Massachusetts actually vote.  Even if all 22,000 of them did, they would be far outnumbered by the remaining 4.7 million eligible voters of the Commonwealth—especially if one of the candidates were proposing to open the jails.  We have no evidence that criminals have ever tipped an election or overturned any law.  This is not surprising, because research shows that most prisoners support the laws they broke. 

“Allowing criminals to vote demeans the electoral process.”

This argument makes a moral claim: even if only one wrongdoer votes, the voting process is corrupted.  The criminal’s “control” of us need not actually influence an election—it is symbolic. 

This idea is built on ancient notions of civic virtue and the “body politic,” and has deep roots in New England.  Early Plymouth refused to admit as a freeman “any opposer of the good and wholsome laws of the colonie,” and seventeenth-century Massachusetts judges could choose to disenfranchise anyone convicted of fornication or any “shamefull and vitious crime.”

But in those days, only a handful of people were qualified to vote in the first place.  The ballot was rare, and its public removal would have meant far more, to the townspeople and to the offender.  When half of eligible Americans don’t care to vote, it is not clear how disenfranchising felons strengthens our communal virtue.

Will this amendment teach us to revere the ballot?  If the sanction of disenfranchisement were public—if prosecutors had to push for it in individual cases or judges could add it at sentencing—a ban on prisoner voting might convey more specific values about voting and crime.  But that is not the choice before us.  Question 2 would create an automatic, invisible vote restriction based on metaphysical beliefs about the health of the body politic—an idea whose time passed long, long ago.

“It’s about punishing criminals.”

Governor Cellucci has offered this explanation for restricting prisoner voting.  Some Americans want more punitive policies; some don’t.  But nearly all agree that criminal punishment aims at some mix of incapacitation, deterrence, rehabilitation, and retribution.  Would this amendment achieve any of these purposes? 

Incapacitation justifies disenfranchising only those who commit vote fraud—not all felons.  As for deterrence, it is unlikely that a man who is not deterred from murder by the prospect of a long prison sentence would be deterred by the possibility of losing the vote.  Obviously, disenfranchisement is counter to rehabilitative goals: if the purpose of “corrections” is to bring offenders back into law-abiding society, maybe we should consider forcing them to vote.

That leaves retribution.  We take rights from prisoners to pay them back for taking the liberty, property, or happiness of others—they can’t travel, assemble, or read with the freedom the rest of us can.  But these restrictions are related to legitimate penal objectives.  They can still write to the newspapers, own property, sue and be sued.  Question 2 asks us to abandon penal necessity as the standard of just retribution, and if we do so there is no reason to stop at voting.  Finally, it is not clear that taking away the vote in this automatic, invisible way—from a criminal population which we know to be largely estranged from politics already—would have any retributive power. 

Being “tough on crime” means taking steps which you believe will reduce crime.  No one can seriously argue that disenfranchisement will have that effect.  Removing the ballot from felons might feel right, but it would accomplish no specific purpose, may further alienate inmates from society, and teaches us falsehoods about the political dangers posed by criminal offenders.  Question 2 would seem to fall short of the strict standards Americans proudly apply to any proposed restriction of fundamental rights—of any person, no matter how unpopular or unpleasant.

Alec Ewald is a doctoral student in political science at the University of Massachusetts at Amherst.