Abstract
The intertwined histories of punishment and democracy in the United States stand out for the many ways in which they have resisted global shifts in theory and practice. In particular, the widespread imposition of the civil penalty of disfranchisement following a felony conviction is one of the most striking anomalies of the American criminal justice system. No other rich democratic country, and few of any sort, continue to impose disfranchisement on non-incarcerated offenders. Many countries even allow inmates to vote, and the number of these countries has been growing in recent years. The United States, by contrast, has continued to allow disfranchisement as a form of punishment, even for non-incarcerated offenders. The disconnect with modern understandings of democratic legitimacy is also stark: long after the requirement of universal suffrage (at least for all citizens) has come to be viewed as essential for elections to be considered legitimate, the US has continued to make voting difficult and exclude large numbers of citizens.
The long history of disfranchisement for a criminal conviction is the subject of Pippa Holloway’s Living in Infamy, a careful and rich reconstruction of the 19th century roots of policies and practices that persist in the 21st century. Focused on the post-Civil War South, Holloway places the ancient conception of infamia, or more specifically the attempt to define ‘infamous’ crimes from other, non-infamous offenses, as a way of understanding the logic of the elimination of some kinds of men from the body politic. During the ‘first’ Reconstruction era (1865-1875), debates over infamy were at the very center of what citizenship was to mean in the aftermath of slavery (and the potential extension of full citizenship to African Americans). The postwar Radical Republicans wanted to punish the Southern rebels, and (more controversially, and with much disagreement about what it meant) provide African Americans with far fuller citizenship than Southern Democrats were prepared to support. Each of the reconstruction amendments to the Constitution (the 13th ending slavery, the 14th with its infamous equal protection clause, and the ultimately ineffectual 15th amendment attempting to guarantee African Americans the right to vote), as well as the various Reconstruction and Readmission Acts, tried in one way or another to deal with voting rights and citizenship in a way that would prevent Southern governments from denying former slaves full membership. But the language of each amendment or Act contained critical ambiguities and compromises that enabled Southern government to pick and choose whether to allow criminal offenders to vote, and more importantly which offenders.
Holloway traces the resulting debates and outcomes to the lingering power of the concept of infamy. For a time, it was the critically contested terrain of Southern racial politics. Although its meaning would shift in ways that make a simple definition almost impossible (indeed, Holloway notes that its malleability was one of its central attractions for actors seeking to disfranchise others), this was the basic idea that through their actions or punishments infamous individuals can be rendered incapable of citizenship (and in particular, that they could not be trusted with the right to vote). Infamous crimes, as they came to be defined in various times and places in the late 19th century, were a puzzling array of offenses: for example, petty larceny, ‘wife-beating,’ ‘chicken theft’ (agricultural crimes were particularly prominent), and so forth. County-level administration of electoral roles (a practice which continues, with important consequences, to this day), allowed racially biased and arbitrary enforcement of ballot restrictions. A sharp distinction between the ‘infamous’ crimes of African Americans and the more ‘robust’ crimes of whites (including murder, which was not always a disfranchising offense!), was made explicit in the extraordinary ruling by the Mississippi Supreme Court in Ratliff v. Beale (74 Miss. 247 [1896]), later affirmed by the US Supreme Court (which noted that while the state may have unjustly used race as the basis for defining infamous crimes, it nevertheless applied to ‘weak and vicious white men as well as weak and vicious black men’ (Williams v. Mississippi, 170 U.S. 213, 222 [1898]).
Holloway’s account adds a particular edge to our historical understanding of disfranchisement. She challenges the view, common in much historical writing on suffrage, which sees felon disenfranchisement as just one of many ways in which, angling for partisan gain, political elites have limited access to the ballot box. In the Southern case, this was the Democratic Party elites keeping minorities and, to some extent, poor whites without the vote. Holloway does not reject those arguments so much as refine and develop them, pointing to the felon case as a critical opening wedge in the limitations on the franchise that would develop in both the South (targeted primarily at blacks) and the North (targeted at immigrants, most notably through literacy provisions).
Holloway’s scholarship required deep digging in obscure and fragmentary state archives, and reflects a hard-won mastery over the sparse existing materials. There is little systematic evidence about the extent or application of felon disfranchisement provisions in the 19th century, forcing scholars to reconstruct the underlying logic of these measures from legislative debates, the records of post-civil war state constitutional assemblies, and various legal battles that left paper trails. Holloway uses those materials wisely, paying close attention to the details of the arguments advanced on behalf of disfranchisement. The richest finds appear in those contexts where actors are forced to provide justifications for their disenfranchising measures. Her reconstruction and interpretation of these rhetorics is sufficiently deep that readers will be struck by the tone of seriousness, as well as the tragic and at times almost comical biases they reveal. In essence, infamy replaced slavery in the American South, and just as we gain a deeper understanding of the cultural dimensions of slavery by studying the claims of pro-slavery advocates, so too in the case of disenfranchisement.
In analyzing the historical origins of felon disenfranchisement, Holloway’s focus on the South is at one level entirely appropriate, given the increasingly extreme disfranchising measures it would adopt and maintain in the Jim Crow era. Her claim is that when it comes to felon disenfranchisement, the Southern conception of infamy won the day. One can certainly argue that felon disfranchisement fits into the history of Jim Crow disfranchisement because it was, as Holloway points out (pp. 3, 153), an opening wedge in what would become a much broader set of strategies for keeping blacks away from the ballot box. But this analytical focus comes with some cost. A more comparative framework including non-Southern states might well raise some doubts about the central role of infamy. For example, many states outside the South adopted disenfranchising measures before the Civil War, in the aftermath of the extension of the right to vote to all white men (even those who did not own property). The use of a discourse of infamy appears to be much more limited in the North, especially after the Civil War. Holloway notes this in passing (pp. 29–30), but does not subject it to close scrutiny. More generally, the fact that a majority of states would eventually settle on blanket ex-felon restrictions (where the divide between infamous and non-infamous crimes dissolved) also suggests caution in elevating infamy to the core of the disfranchisement logic.
It also would have been helpful—and here I should acknowledge my biases as a sociologist reviewing the work of a historian—to have a little more systematic presentation of the social and demographic contexts in which states made and revised their disfranchising laws. There is, for example, an intriguing discussion (in chapter 4) of the fact that Mississippi and South Carolina were the Southern states that went the furthest to establish a definition of infamous crimes that would avoid impacting poor whites. These also happen to be two states with very large African American populations, arguably requiring more care in disfranchisement measures than other Southern states where blacks were a smaller proportion of the state’s population. More generally, rather than burying key findings in the narrative, a systematic presentation of findings in tables or appendices showing which state disfranchised, for which concrete definitions of infamy, would help readers to see more clearly what the patterns were (and allow other researchers to follow up).
That said, I am persuaded by this thoughtful book that infamy has been an underappreciated aspect of the peculiar politics of voting rights in the United States. That it lived on in the ‘moral background’ (as Gabriel Abend might call it) of American democracy, even after the rest of the democratic world had long since abandoned arbitrary rules for universality, highlights the perverse and at times inexplicable character of the punishment/democracy nexus.