Introduction

Judge Henry Wingate explained the importance of the right to vote and the use of disenfranchisement as a form of punishment as follows:

In the liberal democracies of late capitalism, being a citizen without the right to self-representation through voting is akin to civil death (Miller & Spillane, 2012). This medieval concept describes the banishment of the convicted from the umbrella of the state—a punishment reserved for only the most heinous crimes (Agamben, 1998; Miller & Spillane, 2012). Civil death resulted in outlaw status, and left the indicted a political non-entity, both unprotected by systems of law and unrepresented in legislative structures (Agamben, 1998). Yet judicial decisions have confirmed that citizenship does not necessarily include the right to vote; rather states can decide who has that right (Schultz, 2007).

In the United States today, varying state-level practices of disenfranchising the incarcerated, those on parole or probation, those still paying court fines or fees, and those who have completed carceral sentences mean that approximately 6.1 million American citizens cannot legally vote (The Sentencing Project, 2016). Without the ability to vote, those who have had experiences with the criminal justice system cannot participate in the democratic conversation about crime and crime control. More broadly, because carceral systems of enforcement fall disproportionately heavily on racialized and impoverished citizens, electoral exclusion falls disproportionately on their communities (Behrens, Uggen & Manza, 2003; Cammett, 2012).

Voting matters. It converts people from governed subjects to citizen governors. At the level of the community, it makes claims-making on the state possible and elected officials accountable to community needs (Dunning, 2011). The increasingly ubiquitous surveillance of voters means that candidates choose platforms in tandem with voter preferences (Bennett, 2015). With those with felony convictions excluded, a feedback loop of criminalization is inevitable.

Thus, the inescapable underlying logic of felon disenfranchisement is one of pre-crime.