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Ann Cammett

Abstracted from: Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 Penn State Law Review (Fall 2012) (304 Footnotes)

       Debt is the slavery of the free.
             - Publius Syrus (Roman author, 1st Cent. B.C.)

      Felony disenfranchisement is a crisis of democracy. An estimated 5.85 million Americans, or 2.5 percent of the total U.S. voting age population, have lost the right to vote in some capacity in all but two states because they have a criminal conviction. Powerful critiques by activists and scholars alike have highlighted the anti-democratic and racially disproportionate effects of shrinking electoral participation. This article will demonstrate that, for ex-felons in particular, the problem of mounting criminal justice debt can also serve as an insurmountable obstacle to the resumption of voting rights and broader participation in society.

      Voting rights advocates are correctly intent on eradicating state laws that disenfranchise felons. However, if the goal for felons who have “paid their debt to society” is the restoration of social citizenship, then this is an incomplete strategy. A focus on direct disenfranchisement obscures the broader discourse about access to economic resources that are becoming increasingly scarce, a problem largely exacerbated by mass criminalization. For example, even if universal suffrage suddenly manifested, ex-felons would still be unable to navigate the vast array of civil barriers that present unique challenges to political and economic survival after being convicted of a crime. Criminal convictions set in motion a variety of social conditions and regulatory schemes that are mutually and negatively reinforcing and, taken together, render convicted felons “shadow citizens.” It is useful to envision a dual paradigm for these key exclusionary features: first, informal obstacles arising from social subordination; and second, formal legal barriers to voter restoration based on debt that serves as “back door” voter disenfranchisement.

      Informal obstacles are informal in the sense that they do not exist in law with the express purpose of directly inhibiting access to the vote. Rather, they are propounded through practice, custom, and indirect regulation of the lives of ex-felons. They function to stagnate a person's ability to exercise broader participation in society, which is contrary to society's implicit promise of redemption for those convicted of crimes. The first of these obstacles is stigma that redounds to the detriment of convicted felons; such stigma developed historically within a race paradigm and persists because of the development of a race-neutral jurisprudence that gives rise to mass incarceration. Moreover, race is intertwined with the question of class status, specifically poverty, which serves as a self-perpetuating drag on social mobility in the context of criminalized communities. A second major obstacle is the wide range of civil legal disabilities, or what is commonly known as “collateral consequences.” These are legal barriers arising from criminal convictions, which limit access to various aspects of citizenship such as voting, but which also include barriers to employment, housing, and other critical life supports. The third are Kafkaesque state re-enfranchisement processes that prisoners must navigate to restore voting privileges. These processes are often so onerous that the Justice Department has described them as “a national crazy-quilt of disqualifications and restoration procedures.” Finally, for people in the criminal justice system, a distinct and potent obstacle has emerged in the form of untenable “carceral debt,” a term this article uses to describe civil debt associated with criminal justice penalties or debt incurred during incarceration, or both. Much of this debt is euphemistically referred to as “user fees” that attempt to recoup from prisoners the operating costs of the criminal justice system. These fees are not connected to the underlying crime in the way that restitution or fines are, but rather are part of state cost-recovery systems. Nevertheless, these invisible surcharges are imposed on convicts at every stage of criminal justice processing and can become a substantial obstacle to reentry. Notably, this debt is borne by those least able to pay, foreshadowing a cycle of re-incarceration and cyclical recidivism for low-income ex-felons.

      Informal obstacles are but one aspect of the modern re-enfranchisement paradigm. Debt also routinely hinders the formal resumption of voting rights after criminalization, even after state disenfranchisement schemes no longer serve that function. Restrictive re-enfranchisement statutes have quietly supplanted the lifetime disenfranchisement statutes that heretofore served as direct prohibitions on voting by felons, but which are now slowly disappearing. Despite these important developments, debt-related re-enfranchisement barriers have received surprisingly little attention from scholars. In recent years, courts across the country have affirmed the constitutionality of statutes that require felons to satisfy the payment of carceral or other debts in order to resume voting privileges. Interestingly, child support debt has recently emerged as a specific obstacle to re-enfranchisement, as is demonstrated in Johnson v. Bredesen, wherein the Sixth Circuit upheld a Tennessee statute that authorizes an exception to re-enfranchisement when petitioners are not current in child support obligations. Remarkably, the court upheld the constitutionality of this particular statute even though child support debt typically has no connection to the underlying criminal conviction for which an individual has been disenfranchised.

      To date, voter restoration statutes that require the payment of criminal justice-related debt have been routinely upheld, even as they restrict access to the vote, because payment of criminal justice debt is deemed rationally related to legitimate state interests, an extremely deferential constitutional standard. Such a paradigm has a clearly differential impact on the poor: if only those who can pay their debts after a felony conviction can regain the right to vote, those who cannot will remain perpetually disenfranchised. This paradigm, therefore, raises a host of constitutional questions.

      The emerging debt paradigm also has troubling implications for the adoption of future civil schemes that might further restrict post-conviction social and political participation for people in poverty. Theoretically, almost any debt can become a barrier to the resumption of voting rights, so long as the debt is criminalized. Imprisonment for failure to pay a fine, restitution, or court costs can occur when repayment is made a condition of probation or parole and the defendant defaults. In an era of continued fiscal crisis, it is ever more likely that failure to pay consumer debts will begin to factor into this equation. Although debtors' prison has long been abolished for civil debt, failure to pay consumer debt now mimics a criminal act, as many people are legally subject to arrest due to their inability to satisfy the terms of their financial obligations. This dynamic triggers inappropriate contact with the criminal justice system and raises the specter of an emerging twenty-first century debtors' prison.

      Part I of this article will set forth the shocking scope of mass criminalization and will situate American disenfranchisement law and policy within a discourse of democratic participation for ex-felons. Next, it will describe the historical roots and purposes of civil disabilities or “civil death,” and will briefly chart the progressive expansion of the suffrage class over time to include many marginalized groups, except felons. Part I will also explain modern conceptions of felony disenfranchisement jurisprudence by exploring the Supreme Court's constitutional approval of state disenfranchisement laws through the foundational case of Richardson v. Ramirez, a case that relies on a narrow textual reading of Section Two of the Fourteenth Amendment to justify state disenfranchisement schemes. Although this section of the Amendment was designed to force Confederate states to permit African Americans citizenship after the Civil War, Richardson, in the modern era, has given way to a race-neutral interpretation that sanctions the denial of voting rights to all felons by obviating the requirement of heightened scrutiny for their voting rights claims. Such an interpretation exacts a particularly high toll on African American communities.

      Part II of this article will explore the first part of the dual paradigm that has led to “shadow citizens”: informal obstacles to re-enfranchisement. Such obstacles include (1) class and race stigma and the disproportional burden of incarceration; (2) civil collateral consequences of criminal convictions; (3) onerous re-enfranchisement processes that discourage voter restoration; and (4) the emergence of debilitating “carceral” debts, including criminal justice legal financial obligations (LFOs) and child support debt incurred during incarceration. All of these overlapping and interrelated aspects of subordination serve to create informal, but nonetheless profound, barriers to the restoration of political citizenship through the right to vote, as well as the pursuit of broader socio-economic citizenship expressed through roadblocks to successful reintegration.

      In Part III, this article will then explore the second paradigm of exclusion: formal legal barriers to re-enfranchisement arising from criminal justice-related debt obligations. This Part will trace a recent trajectory in the law of re-enfranchisement, where courts have routinely upheld statutes that condition felon re-enfranchisement itself on the payment in full of fines, restitution, court fees, and other debt. Such statutes serve as a barrier to re-enfranchisement even after a state's restrictive disenfranchisement laws have been amended. This Part will further examine the expansion of the conditions that limit voter restoration, which now extend to payment of child support obligations.

      Finally, Part IV will challenge the continuation of these policies even under rational basis analysis, the most deferential standard of review. This article takes the position that statutes creating wealth-based conditions, which directly discriminate against poor ex-felons and burden their right to vote, should fail to survive a rational basis review based on a range of pragmatic legal and policy arguments. This article will conclude with envisioning the future of our emerging debt paradigm by exploring the modern trend of criminalizing debt in this era of fiscal crisis and mass criminalization.

[a1]. Associate Professor of Law, Co-Director, Family Justice Clinic, William S. Boyd School of Law, University of Nevada Las Vegas.