To Be Young, Black, and Powerless: Disenfranchisement in the New Jim Crow Era

Abstract

This article examines the challenges of being young and black in America. In the United States, African Americans have historically suffered from systemic discrimination. Such discrimination deprived them of fundamental rights such as the right to vote. Although African Americans are no longer denied the right to vote based solely on race, the future of the black vote remains threatened by the criminalization of African American youth. African American youths are increasing alienated from systems that are supposed to help them. They are excessively disciplined in schools and disproportionately incarcerated, resulting in the New Jim Crow. This article recounts some of the reasons why and what can be done to address these problems.

“Despite compromise, war, and struggle, the Negro is not free.”2

Introduction

In the United States, Blacks have long been treated as second-class citizens. For hundreds of years, Whites viewed them as bodies fit merely for free hardened labor. They have been burned, beaten, lynched, raped, experimented upon, and feared. They have been portrayed as unworthy, unfit, and less deserving of fundamental equality. Despite perceived socio-economic and legal progress, they have been denied basic human rights based solely on the color of their skin. The story of Blacks in America is one that even progressive Whites are reluctant to tell. It is an ugly truth that renders great shame. However, what is equally shameful is America’s ongoing failure to confront the truth and reverse history’s course.

Throughout this country, Blacks remain victims of what Michelle Alexander termed “The New Jim Crow.” Despite the passage of the Civil Rights Act, they are denied key rights, due to criminal justice policies that were specifically designed to disenfranchise Blacks and maintain white supremacy. As Alexander puts it, “Today it is perfectly legal to discriminate against criminals in nearly all ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination…are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow.”3

Under current felon disenfranchisement laws, nearly 6.1 million Americans are denied the right to vote.4 Although once convicted of a felony, the majority of these individuals have “paid their debt to society” and completed their sentences (51 percent). An additional 26 percent have reentered society with oversight from probation or parole.5 They live, work, and pay taxes in our communities, yet are unable to elect the politicians who serve them. It is not surprising that a disproportionate number of these individuals are Black. In the United States, Blacks are banned from voting at four times the rate of other races.6 In the South, more than 1 in 5 Blacks are unable to vote due to felony convictions.7 But perhaps more shocking, is the fact that a significant number of these individuals were stripped of their rights before they were old enough to vote. As children, they were eliminated from the democratic process and left politically powerless.

This article briefly examines the discriminatory intent of Alabama’s felon disenfranchisement law, the ongoing incarceration of Alabama’s black youth, and the impact of felon disenfranchisement on future generations of Black voters.

I. The Discriminatory Intent of Alabama’s Felon Disenfranchisement Law

The origin of Alabama’s disenfranchisement law can be traced to the intent of Alabama’s wealthy to deprive Blacks and poor Whites of their right to vote.8 In 1901, Alabama’s constitution was drafted in response to white southerners who were disgruntled about the emancipation of black slaves and the recent adoption of the Fourteenth and Fifteenth Amendments.9 As W.E.B. DuBois recalled, following the Emancipation of black slaves, “[n]ot a single Southern legislature stood ready to admit a Negro, under any conditions, to the polls; not a single Southern legislature believed free Negro labor was possible without a system of restrictions that took all its freedom away; there was scarcely any white man in the South who did not honestly regard Emancipation as a crime, and its practical nullification as a duty.”10 Dissatisfied with the freedom and emerging power of newly freed slaves, Whites in Alabama agreed “something must be done.”11 They decided to create a new constitution that would divest Blacks of political power for years to come.

The racist intent of the 1901 constitutional convention was evident from the start. In his opening address, President John B. Knox stated, “And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”12 Other drafters similarly boasted about their efforts. In 1902, Dabney Palmer wrote a letter to his granddaughter stating, “I wrote my name to our new Constitution in September 1901…This will never be forgotten: we have virtually disfranchised the negro….”13

With the intent to maintain white supremacy, the authors of the 1901 Constitution constructed a number of obstacles to stifle black progress.14 Most prevailing were their efforts to strip blacks of the right to vote. They codified voting restrictions such as the grandfather clause, poll taxes, and literacy tests.15 For additional security, they included a criminal disenfranchisement provision. It was “intended to provide states with ‘insurance if courts struck down more blatantly unconstitutional clauses.’”16

The 1901 Constitution was not the first Alabama constitution to deny voting rights to persons with felony convictions. However, the new constitution broadened its scope to include non-felony offenses (or “any crime involving moral turpitude”).17 In doing so, drafters concentrated their efforts on crimes that they believed were more frequently committed by Blacks. For example, the new law would deny the right to vote to persons who committed the offense of wife beating. The anticipated effect was that “the crime of wife-beating alone would disqualify sixty percent of Negroes” from voting.18

The impact of the new constitution was seen immediately. Within two years of its ratification, the Black vote declined from 181,000 to less than 3,000.19 It would take nearly a century to undo the harm. In 1985, in Hunter v. Underwood, the U.S. Supreme Court struck down Alabama’s disenfranchisement law with regard to misdemeanors involving moral turpitude. The Court ruled that there was sufficient evidence to show that the law’s “original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect.”20

After Hunter, the constitution was amended to eliminate voting restrictions for persons convicted of misdemeanors. However, it continued to disenfranchise persons convicted of felonies. Because the amendment did not define “crimes of moral turpitude,” officials were left to decide how to interpret and apply the law. In 2008, misapplication of the law prevented thousands of Blacks from voting in an election involving the first Black President of the United States.21 The state legislature listed 15 felonies involving moral turpitude; the Administrative Office of Courts listed 70; and the Governor’s Office listed nearly 500.22 In 2017, the legislature finally codified a list of approximately 60 felonies involving moral turpitude.23

II. The Incarceration of Black Youth in Alabama

The injustice of Alabama’s criminal system towards Black youth is no new phenomenon. Many are familiar with the wrongful conviction of nine black boys in Scottsboro, Alabama. In 1931, nine black boys—as young as 13—were falsely accused of raping two white women, while riding a train to Memphis to find work. Within a matter of days and without adequate counsel, the boys were tried by an all-white jury and sentenced to death.24 Today, black children in Alabama continue to face disparaging outcomes in criminal court. In 2017, Alabama’s Juvenile Justice Task Force found that “[r]acial disparities exist throughout the juvenile system.”25 The Task Force found racial disparities at all levels, but the largest disparities involved cases where children were committed to state detention facilities (DYS) or transferred to adult criminal court.26 In other words, when compared to other children within the juvenile system, black children received the harshest penalties available. Black children were frequently removed from their homes and sent to adult jails or detention facilities, while white children were offered community-based alternatives and leniency.

When examining the prosecution of children in adult court, the Task Force found that black children represented 61 percent of all charges transferred from juvenile to adult court. Similarly, black children made up 84 percent of all instances where children had their charges directly (or automatically) filed in adult court.27 The numbers are both significant and disheartening. In Alabama, the prosecutor or arresting officer (most often White) decides whether a child’s case is directly filed in adult court or initiated in juvenile court. The data shows that in cases where an impartial prosecutor or officer holds the discretion, black children overwhelmingly receive the worst outcomes. There is no legal process for reversing the prosecutor’s decision.

Harsh criminal penalties for black children often stem from inequitable disciplinary practices in schools. A study of thirteen southern states found that southern schools disproportionately suspend and expel black students. In Alabama, black students make up 34 percent of all enrolled students, but receive 64 percent of school suspensions.28 Black girls are the most severely punished. Throughout the South, black girls make up 56 percent of all school suspensions and 45 percent of expulsions.

School disciplinary rates are key to understanding the effects of the school-to-prison pipeline. Data shows that expulsions and suspensions are strongly linked to subsequent involvement in the criminal system.29 Black students are 3.49 times more likely to be arrested at school than white students and are more than twice as likely to be referred to law enforcement.30 Blacks are more likely to be suspended or expelled when teachers or officials have discretion to determine punishment.31

III. The Impact of Felon Disenfranchisement on Future Black Voters

The treatment of black children in schools and the criminal justice system today bears directly upon future political power. When children are prosecuted in adult courts, there are permanent social, psychological and political consequences. Children convicted of felony offenses are stripped of their voting rights and unable to participate in the democratic process.32 They are denied the opportunity to become future political leaders and denied opportunities to use the political process to influence decisions that impact their families and communities. Before they have matured into adults or been afforded the privileges and liberties that make being a citizen in this country great, they are condemned to second-class citizens with no political voice or power. In effect, they are legal outcasts in their own society.

Such a fate for black children is detrimental to the future of the black community. Felon disenfranchisement laws threaten to nullify decades of struggle to achieve fundamental equality at the ballot. Given current rates of disenfranchisement and practices towards black children in schools and courts, it is reasonable to expect that the majority of black voters in the next generation will be unable to cast their ballot. It is an alarming reality that must be addressed. The right to vote is critical to the health of the black community. It is the means by which Blacks ensure that their communities are not neglected and their concerns are not unheard. It is their opportunity to ensure fair representation and a proper seat at the table. According to DuBois, “the power of the ballot” is Blacks only defense against “a second slavery.”33

In light of these circumstances, we cannot afford to be silent and wait with hopeful aspirations that this too shall pass. The drafters of Alabama’s disenfranchisement law made their intent clear. And for over a century, the impact of their racial animus has been realized. In addition, data evidences that when decisions about the future of black children are left in the hands of white officials, black children will not be treated with the grace extended to white children. Instead, they will be divested of any real opportunity for meaningful change.

As such, it is up to us to reverse the course. We cannot expect to undo centuries of damage overnight. However, we must be unrelenting in our efforts to demand reform in our schools and courts. If we are to sustain political power in the black community, “[w]e need to make it so that all of our kids are allowed to make mistakes and be treated with love, treated like they have a future and not discarded…we’ve got to change this narrative that some children aren’t children.”34