Lifetime Felony Disenfranchisement in Florida, Texas, and Iowa: Symbolic and Instrumental Law

Confused Constitutional History, Racism, and Southern Comfort THE DISTINCTION BETWEEN INSTRUMENTAL AND SYMBOLIC LAW HAS BECOME ROUTINE for social scientists (Gusfield, 1963; Edelman, 1964). The former is actually intended to control behavior, while the latter is more concerned with using law to make a public statement. If ever there was legislation that seems designed to control human behavior, it is lifetime felony disenfranchisement (LFD). It is well known that LFD laws have much of their origins in American racism and the Civil War. According to Chin (2004: 261), after the Civil War Congress "required the former Confederate states to adopt constitutions allowing African Americans to vote as a condition of ending military occupation," but this prohibition on racial discrimination was not honored by many states. In the final analysis, the Constitution gives authority for determining elector qualifications to the individual state governments. Some state laws disenfranchise convicted felons only while they are in prison, and some extend it to their time on probation or parole; in others, lifetime disenfranchisement is only activated by a second felony conviction, while in Florida and Iowa, this occurs on the first conviction. No other democratic nation imprisons as many of its people because of a felony conviction. Between 1890 and 1910, five states in the Deep South (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) "tailored their criminal disenfranchisement laws to increase their effect on black citizens (Clegg, 200 : 170). Shapiro (1997: 2) observes that there is "a history in this country of intentional use of such laws to deprive blacks of the vote. Indeed, it's a history that should tell us something about the distinct injustice of permanently disenfranchising ex-felons, whatever their race." Although racism is no longer legal, the criminal disenfranchisement laws passed with discriminatory intent more than 150 years ago continue to achieve their racist goals (Majuri, n.d.). African Americans are still disenfranchised at a rate far in excess of whites. Chin (2004: 264) notes that among "drug offenders, the fastest growing portion of the felon population over the past thirty years, there is substantial evidence of prosecution and conviction of African-Americans disproportionate to their rate of offending." Tonry (1995) concurs that the skyrocketing black prison population began in the 1980s during the inception of the war on drugs. Although the incidence of crimes committed by blacks has not increased, the number of black prisoners has tripled since 1980. Approximately 13% of black males have lost their right to vote due to felony convictions, or around 1.4 million persons (Sentencing Project, 2000). The primary theoretical tool used to explain LFD legislation is the racial threat thesis (Behrens et al., 2003). The idea is that the presence of a high proportion of African Americans creates a threat that can be temporarily reduced by sentencing a large number of blacks to prison. This explains the situation in Florida, but it does less well in Texas and Iowa. Yet it has been observed that "we lack both case studies and comparative-historical analyses of the adoption of disenfranchisement law" (Ibid.), and this applies equally to research on the repeal and maintenance of such legislation. To begin to fill these gaps, we will demonstrate how the instrumental use of LFD law has continued unabated in Florida, while the distinction between instrumental and symbolic law can be used to explain the repeal of LFD legislation in Texas and its retention in Iowa. The study of this contemporary bigotry is made more difficult by the "race neutral" language found in the current debates (Ibid.: 568). Yet we will demonstrate that through policies that have been explicitly and are now "implicitly racial, state institutions organize and enforce the racial politics of everyday life" (Omi and Winant, 1986: 77). …