Expunging Criminal Records

Christopher Uggen

Comments from the McKnight Professor and Chair of Sociology, University of Minnesota

From the Rights Stuff Newsletter April 2009

"People who have struggled for the right to vote, or whose parents struggled for the right to vote, are often highly sensitive to the idea of disenfranchising individuals and their broader community."

- Christopher Uggen

Comments from Christopher Uggen

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Question: As a sociologist, you have focused quite a bit on voting rights for those who have been disenfranchised through the criminal justice system. What is your perspective on that issue?

Christopher UggenChristopher Uggen: The issue of voting to me is so fundamental, especially as this visible symbol of inclusion in a broader society. I find it frustrating when people treat it as, well, just this minor thing that people forfeit when they commit a crime. Unlike some of the integration programs that I might advocate for, there is very little downside to extending the franchise. If you do implement a much more extensive use of parole, for example, there is always the chance that something terrible is going to happen, and you have to keep public safety first and foremost in those discussions. But with voting, it’s a much more clear-cut kind of issue.

SF 564 would restore voting rights at the point of release rather than at the end of sentence. I understand that you support that legislation. Do you believe it goes far enough in extending or restoring the franchise?

The other day I got a question, why not sever the tie between voting rights and punishment, as is the case in many countries. It gets to the will of the people on this. It’s clearly the case that the majority of Americans support restoring the right to vote to people while they’re in the community but it’s when you get to the prison gates that this sort of deprivation of liberty is not only tolerated but supported. So I think it’s a clean system if you say: when you’re in, you’re in. And when you’re out, you’re out. So you do expect to have further limitations on those rights when you’re in prison.

One interesting twist is that in many nations, you are disenfranchised only if you violate election laws or voting laws. This would narrow the scope considerably if Minnesota went in a direction like that. I think what you’re seeing around the country is that more states are making some fine grain distinctions about who should be able to vote and who shouldn’t -- disenfranchising, say, violent recidivists or some other group, which is largely related to the stigma associated with that group, rather than any sort of natural connection with the voting.

What is the trend nationally with respect to voting rights and expanding the franchise?

If you look at when the most restrictive laws were passed, it was around the 1860s, 1870s, 1880s, and it was part of the Civil War, Reconstruction era in which many other disenfranchising measures were implemented. These laws started to be liberalized during the civil rights era in the 50s, 60s and 70s. But if you look at the geography of disenfranchisement, it’s largely still former slave states that have the strictest prohibitions, that might disenfranchise for life.

In Minnesota, we make extensive use of community supervision. Unlike many states that are really over incarcerating, we have a pretty lean and efficient criminal justice system. But people can get long probation sentences, and from the defendant’s perspective they are much happier to do probation than have to do prison time. But the upshot is that then you have people who are convicted of less serious crimes, who are disenfranchised for far longer than people convicted of more serious crimes.

Is there any evidence to suggest that it makes a difference to people if their right to vote is restored, in terms of whether they are likely to end up in trouble with the law again?

That’s a question I’ve been looking at. And I have to offer this with some caveats. It’s certainly the case, unequivocably, that those who vote are far less likely to get into trouble. The more subtle point with that though, is that it’s very hard to make strong causal claims. I don’t want to say that the act of pulling the lever suddenly transforms one into a law abiding citizen. On the other hand, I view it as kind of analogous to the marriage ceremony, where I don’t expect that the act of going to the church and getting hitched necessarily turns one’s life around. But it’s certainly the case that those former inmates who are married do far better. Voting, to me, is really reflective of this participating as a stakeholder in society. Simply put, it’s like a classic insider, outsider thing -- you’re less likely to violate if you’re part of that community.

How important is the restoration of voting rights to those who have lost those rights? When voting rights are restored, is there a lot of participation in the voting process?

In my models, it’s been about half the general population participation rate. But part of the difficulty in measuring that, is that there is so much misinformation. I interviewed a number of Minnesota prisoners, parolees and probationers, and what struck me was how confident and sure they were that they couldn’t vote, or that there was a waiting period. There is a set of information floating around out there that says they are ineligible. So it’s hard to know, if they knew they were eligible, whether they would be participating at higher rates.

Legislation currently proposed would require them to be given notice that their voting rights have been restored. Why is this legislation important?

One of the things that I looked to, as a criminologist, is that you’re really ushered into the system with all this pomp and ceremony. You go before the judge and the judge is in a robe and you’re led away in handcuffs -- it’s a very dramatic sort of act. When you leave prison there is not nearly that sort of effort to mark the occasion, to really welcome you back. We might be able to capitalize on that moment more. I can be a bit of a Pollyanna on this, I’ll admit, but I really do think that those ceremonies matter. Otherwise we wouldn’t do them at the front end.

I’m a social scientist, so I don’t like to get too far out on advocacy issues. But I really do feel strongly -- after having studied this issue for a decade -- that there are so many good reasons to restore the right to vote. And I think that reducing some of the racial disparities in ballot access is chief among them. The idea that there are five million disenfranchised Americans who happen to be mostly poor, and disproportionately people of color, means that you’re really getting a skewed kind of view on all sorts of political issues. The idea that elected representatives aren’t accountable to this group shifts debate on issues, whether it’s the minimum wage or foreign policy or welfare reform. I focus mostly on the effect on the individual who is disenfranchised, but if you think about that individual’s community, their children, their family, etc. it goes much deeper. From a human rights perspective, you’re really disenfranchising communities.

Your research suggests that about 10 percent of African Americans are now disenfranchised in Minnesota.

That’s right. And in a way, it’s kind of a classic Minnesota dilemma: I’m not saying that people in Minnesota are acting with the racist intent here. But the issue is, we have a system in which we place a lot of people under supervision in the community to keep them out of prison. But what this has done is really disenfranchised communities of color in a much more powerful and dramatic way.

I’m sure the shift from prison to community corrections was not intended to do this in Minnesota. But I will say, too, that in many American states there is very strong historical evidence of racial intent in passage of these laws. In the postwar period when African American males were given the right to vote in states like Alabama and Mississippi, it is quite clear from the historical record that these laws were intended to disenfranchise newly-freed slaves because their votes could really upset the balance of power. There was even some gerrymandering on that issue: petty theft and vagrancy were disenfranchising crimes because they were associated with slaves. But murder was intentionally left out, because there was a tradition of honor and many landowning whites were convicted of murder. The call of the Alabama Constitutional convention was, we’ve got to attack the franchise to avert “the menace of Negro domination.”

How do you respond to the argument that, if someone violates the laws of society, they owe a debt to society, and should forfeit certain rights until that debt is paid?

The one I hear, too, is that you’ve demonstrated that you don’t have the judgment to participate as a citizen -- you’ve made poor choices. As someone who is pro-democracy, I think we have to be real careful in deciding who is permitted to be a participating member of our society. If you think about it, who is it that you’d like to vote? I would certainly like people who share my political positions -- I’d prefer to disenfranchise Nazis, bigots, and others. But the point is, we’re a democracy and we can’t do that.

I do think the idea that one forfeits certain rights and privileges when convicted of a crime is a powerful argument. I would just say that in the case of probation and parole, we’ve determined that these individuals are safe to join us in our communities and participate as taxpayers, as citizens. I did a lot of interviews with felons and former felons and some of the themes that come out of that very strongly are ideas like taxation without representation -- the idea that you’re working, and you don’t have any right to vote on the kind of schools that your kids have.

I think, from a criminologist perspective, that it’s something that we can do with a little downside risk, relative to a lot of the other proposals. Something like the “ban the box” proposal (which would prevent employers from asking initially about applicant’s arrest or conviction record) is something I consider to be a good idea in protecting the rights of those who have had a criminal record. On the other hand, I do think there are legitimate rights of employers to inquire into their employees, and their rights have to also be respected. It really requires some serious balancing of interests, risks, opportunities.

You don’t see any downsides to extending the franchise to people on probation, for example?

I don’t. Occasionally I’ll hear people say, well there will be this voting block of former felons who are going to overturn sex offender laws or something. That’s clearly not the case. The individuals who are convicted of crimes tended to have values about punishment that are pretty similar to those outside the prisons. Believe me, they know we need prisons. And what they generally ask for is more specificity with regard to the conditions of their punishment.

How important is having the right to vote to people who have been disenfranchised through the criminal justice system?

When my book came out (Locked Out: Felon Disenfranchisement and American Democracy; 2006, Oxford) I did some public events at which I was astounded at how many people would show up for a voting rights forum. They will take this as a real rite of passage -- it seems to be a pretty powerful right that folks are embracing. Why do we wear those I voted stickers? Why do we get such a good feeling when we participate. And I’d say for an African American man who’s had a rough life and been incarcerated and is coming out trying to make good, to be able to have voted for Barack Obama -- that’s a powerful moment in that individual’s life, often. And to be locked out of being able to participate in this historical moment is pretty powerful.

I did some expert witness work in the state of Florida where they were disenfranchising for life, and I was looking at the operation of the clemency system. It was a voting rights act case so it really did hinge on some racial issues. So I analyzed about 1,000 case files of people who had applied to get their rights back, and it was just fascinating to see their histories. They each had to write a narrative about why they were requesting the restoration of their civil rights. One of the things that was interesting was that the whites were more likely to be requesting a restoration of civil rights for the purpose of gun ownership. And African-Americans were much more likely to be requesting restoration of civil rights for the purpose of voting. That really sensitized me to the fact that voting means something different for different groups. People who have struggled for the right to vote, or whose parents struggled for the right to vote, are often highly sensitive to the idea of disenfranchising individuals and their broader community.

There appears to be a substantial increase, in recent years, in the number of Minnesotans who are disenfranchised.

Yes, it’s been quite a historical move upwards. Our prison population alone has risen dramatically in the past few years. The supervised release population is not supposed to be rising that quickly, but it certainly is, and I think that’s partly a function of sentence length. In the criminal justice system there is what economists might call downward rigidity, where you can ratchet things up that it’s very tough to bring them down. So we’ve introduced in Minnesota a felony strangulation statute which has had the effect of making domestic violence cases, in which there was any sort of choking, became a felony. Nobody is going to come out in favor of strangulation, right? But individuals incarcerated for those actions are no longer doing a few months in a county jail; they’re doing time in a prison, or in a very long combined prison, probation, parole sentence.

DWI is another example, and that’s affected quite a number of Minnesotans. To build a coalition around, say, “I think we’re keeping some offenders too long in prison and we need to pare back those penalties” -- it takes great political courage, even if it makes sense from a public safety side. There is always the potential danger that, boy, that one person that you let out will get drunk and kill somebody.

Is there anything you’d like to add?

I have been working on criminal justice policy issues for a long time, and I think that the conversations we are having now are quite productive. I’m seeing far less demagoguery on crime issues, and more, well, let’s try to work this out, let’s try to figure out a way to balance the different rights and interests. Ten years ago, there was a much more knee-jerk kind of reaction, where there is no way we are going to lower any penalties, we are just going to jack them up. And what we ended up with is a very punitive criminal justice system.

We have to look at, well, given the best available scientific evidence, how is it likely to increase or decrease public safety? And then how are we going to balance and protect the rights of our citizens and the various constituent groups we have?

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