IV. Thinking Bigger: Ending Constitutionally Codified Injustice

In the struggle against felon disenfranchisement and prison slavery, victories achieved through partial legislative reform and all-too-rare favorable judicial rulings are tenuous forms of progress. Laws can be repealed, judicial decisions overturned; in the meantime, the voting powers of millions of Americans--and the legitimacy of our democracy--hang in the balance.

The disenfranchisement and enslavement of American citizens derives its constitutional legality under the criminal exceptions to the Thirteenth and Fourteenth Amendments. This fact has largely shielded the policies from widespread public disapproval and obscured their racial roots. As political debate and media coverage have created and reinforced the perception of crime as a racial issue, this nation has come to expect and accept higher rates of arrest and imprisonment among black and Latino communities. The War on Drugs, largely a war waged against poor communities of color, has drastically increased the number of blacks and Latinos with felony records despite statistics revealing that rates of drug use are remarkably similar across racial groups. As long as these rates of arrest and imprisonment are accepted as legitimate, their collateral consequences, including the loss of the right to vote and the autonomy to decide when, where, and whether to work, will be viewed as acceptable punishments.

Public support for reforming felon disenfranchisement laws has grown, and may continue to spark significant grassroots legislative reform like that witnessed in Rhode Island. Forced convict labor faces an even steeper uphill battle, largely because it impacts those hidden from public view and within the prison walls. The practice has failed to garner widespread public denouncement for decades and continues, in some form, in many prisons throughout the country largely because the general public fails to recognize the practice's detrimental impact upon their own lives. Those disenfranchised and enslaved under the banner of law and order lack a powerful lobby and inspire little public sympathy; indeed, they represent precisely the kind of marginalized minority for whom constitutional rights are most important.

In combatting the results of these laws, we must be clear about their origins: we are not dealing with misguided or unintentionally detrimental policies; we are fighting against a national Constitution that, immediately after slavery, provided states a blueprint of how to continue enslaving and oppressing black people as long as they learned to call them felons instead of niggers. Acknowledging that fact requires deconstructing much of the myth of our national democracy, but we must pursue an honest understanding of the historical legacies leading to this moment in order to truly redirect the path.

Advocacy to establish more just treatment of individuals with criminal convictions must include discussion of the constitutional deficiencies that stand as a significant obstacle to that goal. As long as the Thirteenth and Fourteenth Amendments explicitly condone their enslavement and disenfranchisement, the fight for the rights of individuals convicted of crime will be a fight against the Constitution, and their fates will depend on the whim of a political system that has spent years blindly fighting a war on crime with no end in sight. After all, what rights can these individuals expect to assert, what judicial protection can they expect to obtain, and what faith can they have in the endurance of legislative reform, while living in a country whose Constitution explicitly permits their enslavement and political disempowerment?

The criminal exceptions codified in the Constitution permit much of the widespread discrimination the criminally convicted currently face, by lending legitimacy even to laws the Thirteenth and Fourteenth Amendments do not explicitly sanction, and feeding a broader public perception that the criminally convicted are a group who can justifiably be deprived of any and all rights at the whim of a legislative act. At the same time, felon disenfranchisement and prison slavery remain two of the most visible--and impenetrable--forms of exploitation to which they are exposed. The criminally convicted are uniquely vulnerable precisely because the same constitutional defects that allowed these policies to be created as explicit and overt forms of racial subjugation in the years following the Civil War now prevent them from being judicially challenged. They are harmful remnants of a shameful era that continue to perpetuate racial injustice, inequality, and oppression. As long as these exceptions remain a gaping hole in the constitutionally guaranteed rights of citizenship, the criminally convicted will remain vulnerable to whatever abuse and oppression is aimed at them, and the nation's nineteenth century promise of freedom and equality will remain unfulfilled.

. Yale Law School Class of 2010; Legal Fellow, Equal Justice Initiative, Montgomery, Alabama.