III. Reform Efforts Through Litigation and Legislation

Efforts to challenge the continued disenfranchisement of felons and the enslavement of incarcerated Americans face a considerable roadblock: these types of human rights violations are explicitly permitted by the Constitution's criminal exception to the Thirteenth and Fourteenth Amendments. While litigation and legislative reform efforts have had limited success in the context of felon disenfranchisement, penal slavery has proven largely impenetrable to such methods of change.

A. Litigation

Litigation challenging felon disenfranchisement policies under the Equal Protection clause has proven largely unsuccessful. In Richardson v. Ramirez, for example, the U.S. Supreme Court upheld California's disenfranchisement laws, holding that the Fourteenth Amendment explicitly authorizes states to deny the vote on the basis of participation in rebellion, or other crime such that voting restrictions that do so cannot violate that same amendment.

Subsequent litigation suggests that evidence of unequal enforcement or intentional discrimination could render a felon disenfranchisement policy invalid under the Equal Protection Clause, yet few plaintiffs have been able to satisfy the necessary burden of proof. The sole successful challenge to prevail before the Supreme Court was the 1985 case of Hunter v. Underwood, in which an Alabama constitutional provision that disenfranchised those convicted of crimes involving moral turpitude was held to have both racially discriminatory intent and impact. Nevertheless, laws that closely mirror the language and scope of the Fourteenth Amendment remain virtually immune to judicial challenge under the Equal Protection Clause.

Efforts to mount challenges under section 2 of the Voting Rights Act (VRA), on the grounds that the laws have a disparate racial impact, have also waged an uphill battle. Many lower courts have held that disenfranchisement cannot be challenged under the VRA at all, due to its explicit constitutional approval. A landmark victory for the disenfranchised was recently had in the Ninth Circuit case, Farrakhan v. Gregoire, when a three-judge panel struck down Washington State's disenfranchisement law as a violation of the VRA. The decision, released January 5, 2010, noted the plaintiffs' compelling evidence of racial discrimination in Washington's criminal justice system and overturned the lower court. Unfortunately, an en banc rehearing by the Ninth Circuit ultimately reversed the decision on dubious grounds.

Citing the Supreme Court's infamous 1987 decision in McCleskey v. Kemp --which rejected compelling statistical evidence of racial disparity in application of the death penalty--the Ninth Circuit's seven-page opinion held that a VRA challenge to a felon disenfranchisement law requires a finding that there is intentional discrimination in the state's criminal justice system. Because the plaintiffs had not provided evidence of such intent, Washington's felon disenfranchisement law--which empowers a racially discriminatory criminal justice system to deny the vote to twenty-five percent of the state's black men --was held legal and immune to challenge under federal law. As plaintiffs' counsel Ryan P. Haygood subsequently noted, the court's reliance on an intent standard as an excuse to ignore the overwhelming racialized impact of this disenfranchisement law deprives plaintiffs of relief in the very forum most likely to grant it:

[B]y reverting to the overt intent standard for section 2 challenges and disregarding the resulting impact a remarkable set of proven and undisputed facts have on the plaintiffs' voting rights, the court not only trampled on the congressionally established results-focus standard governing section 2 cases, but it also effectively foreclosed any realistic possibility of relief for plaintiffs bringing felon disenfranchisement challenges. In the end, the court allowed the racism permeating Washington's criminal justice system to continue to contaminate and fundamentally undermine the state's democratic processes.

The ironic and disheartening result of all this--beyond its unfortunate precedential impact--is that Washington's disproportionately disfranchised racial minorities are left with only one hope for change: to rely on the same political process that has already cast them out.

The Thirteenth Amendment's criminal exception has largely precluded legal challenges to laws mandating inmates work in state-owned or private industry, and even exempts prison workers from standard employment protections. Gates v. Collier was a 1974 federal case sparked by civil rights investigations into conditions at Mississippi's Parchman Farm prison. Though the litigation did result in judicial rulings that mandated major reforms of the prison's disciplinary systems and other procedures, the claim was based in the Eighth Amendment and did not explicitly challenge the fundamental practice of involuntary servitude in the prison setting.

Most recently in Serra v. Lappin, federal prisoners mounted a claim in the Ninth Circuit, alleging that their low pay in prison jobs was a constitutional violation under the Fifth Amendment. In affirming the lower court's dismissal of the claim, the Court of Appeals relied on the Thirteenth Amendment's criminal exception, writing:

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law. Plaintiffs sued officials of the Bureau of Prisons for damages and injunctive and declaratory relief. We conclude that prisoners have no enforceable right to be paid for their work under the Constitution or international law, and we affirm the district court's dismissal of the action.

In addition to the sizeable doctrinal hurdles that hinder these claims, some commentators posit that prison inmates are especially unlikely to form the kind of alliances necessary to attract the resources to mount such a case. This is because, unlike felon disenfranchisement, the experience of prison labor is largely contained within the prison walls.

B. Legislation

Legislative efforts of reform are less hampered by the constitutional obstacle, but must grapple with the difficult political reality of tough on crime rhetoric. In an age when politicians are wary of being labeled soft on criminals and the general public largely supports increasingly punitive criminal policies, it is difficult to mount a grassroots movement to empower the criminally convicted. Nevertheless there has been recent success.

The publicity accorded felon disenfranchisement following the 2000 presidential election spawned grassroots and legislative efforts throughout the country, resulting in substantial reform over the past ten years. A coalition of activists, disenfranchised felons, and college students in Rhode Island effectively mounted a multi-year public awareness and education campaign that culminated in a successful 2006 ballot referendum that ended the disenfranchisement of non-incarcerated felons in the state. The referendum passed with just 51.25% of the vote and represented the first time a disenfranchisement law was struck down by popular vote.

Legislature-initiated reform has been somewhat more common. According to the Sentencing Project--a national criminal justice research organization-- twenty-three states amended their disenfranchisement policies between 1997 and 2010, resulting in the re-enfranchisement of at least 800,000 people. Today, only Virginia and Kentucky continue to impose lifetime disenfranchisement on individuals with felony convictions. At the federal level, Congress is considering the Democracy Restoration Act, which would automatically restore citizens' federal voting rights upon release from prison.

In the area of prison labor, grassroots and legislative advocacy in recent decades has often worked against the goals of reform. The 1994 Oregon Ballot Initiative and 1979 repeal of former restrictions on private use of prison labor demonstrate the extent to which contemporary political trends and public sentiment favor expanding rather than restricting the criminal exception to slavery prohibitions.

However, as discussed above, the impact of prison labor is far-reaching; increased recognition of the common detriment imposed on both prison and nonprison workers by an exploitative system of prison labor could present an opportunity for coalition building and grassroots efforts for reform. Decades ago, few would have expected that a political and public will to reform felon disenfranchisement statutes throughout the country would develop and prove successful in the span of a decade, yet that is just what happened. Perhaps such a future can be achieved for prison slavery as well.