The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from the State Constitutional Convention Debates
State criminal disenfranchisement provisions have recently attracted much scholarly attention. Some scholars have examined the consequences of these policies, such as the number of individuals they have disenfranchised (particularly the high percentage of African Americans),1 the way in which they have altered election outcomes,2 and their effect on voter turnout.3 Other scholars have assessed the persuasiveness of various justifications for these policies.4 Still other scholars have analyzed legal strategies that might be used to repeal these policies.5
Little has been done, though, to undertake a systematic investigation into the origins of these provisions, and particularly into the reasons given to justify their adoption and retention. The key sources that have begun to provide answers to these questions are a 2000 book by Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States, and a 2006 book by Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy. As a result of this research, we know the dates of origin of these provisionsówhich were put in place in a number of states before the Civil War, then adopted in nearly all other states in the late nineteenth century, only to be liberalized in many states beginning in the 1960sóand we also have the benefit of statistical studies of factors correlated with their passage, retention, and relaxation.6 However, with the exception of scattered pieces of evidence regarding their adoption in several states,7 little has been done to analyze [End Page 282] the debates regarding the origin and retention of these state policies, which range in scope from the disenfranchisement of incarcerated felons only (currently the policy of fifteen states), to incarcerated felons and parolees (four states), to incarcerated felons, parolees, and probationers (sixteen states), to incarcerated felons, parolees, probationers, and some or all ex-felons (thirteen states).8
My purpose is to examine the 114 extant records of the debates in the 233 state constitutional conventions held throughout U.S. history, with the intent of gauging the prevalence of the various arguments that convention delegates advanced for and against adoption of criminal disenfranchisement provisions.9 Admittedly, such a study cannot take account of arguments that were unexpressed on the convention floor; nor can it take note of constitutional changes adopted in piecemeal fashion through the amendment process; nor can it examine the 119 conventions for which debate records have not been retained.10 Nevertheless, the 114 extant convention debatesówhich range in time from the Connecticut Convention of 1818 to the New Hampshire Convention of 1984 and include 22 conventions held before 1850, 44 conventions held from 1851 to 1900, 20 conventions from 1901 to 1950, and 28 conventions held since 1950, and include at least one convention from 44 of the states11 óare broadly representative, both geographically and chronologically, of the conventions held throughout U.S. history. Moreover, these convention debates have provided insights into the development of various other suffrage policies, and there is good reason to believe that they can yield similar insights regarding adoption of criminal disenfranchisement policies.12
These criminal disenfranchisement debates, whose citations are listed in the Appendix and were identified through a reading of the 114 extant convention debates (many of which are well indexed, but others of which are poorly indexed or not indexed and therefore required reading the entirety of the debates) took a variety of forms.13 At times, convention delegates considered whether to institute criminal disenfranchisement provisions. At other times, delegates debated whether to eliminate existing provisions. At still other times, debates about the general merits of criminal disenfranchisement policies were stimulated by specific questions, such as how to define the crimes that would trigger disenfranchisement, or whether to disenfranchise ex-felons in addition to incarcerated felons, or...
